UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


COURTS 


AND    THEIR    JURISDICTION 


A.    TREA^TISE 


JURISDICTION  OF  THE  COURTS  OF  THE  PRESENT  DAY,  HOW 

SUCH    JURISDICTION    IS    CONFERRED,    AND    THE 

MEANS  OF  ACQUIRING  AND  LOSING  IT 


JOHN   D.  WORKS 

Formerly  one  of  the  Justices  of  the  Supreme  Court  of  the  State  of  California,  and 

author  of  "  Indiana  Pleading  and  Practice"  and  of  "  Removal 

of  Causes  from  State  to  Federal  Courts" 


SEC0>;D  EDITION 


CINCINNATI 
THE   ROBERT  CLARKE   COMPANY. 

1897 


r     ^ 


Copyright,  1894, 
By  The  Robert  Clarke  Company. 


^ 

«£ 


PREFACE 


The  subject  of  jurisdiction  is  one  of  the  most  impor- 
tant connected  with  the  administration  of  justice,  and  one 
upon  which,  in  almost  all  of  its  branches,  the  authorities 
are  numerous  and  conflicting.  This  being  so,  the  most 
difficult  task  in  the  preparation  of  a  work  on  jurisdiction 
is  not  to  find  authorities  to  support  the  views  and  conclu- 
sions of  the  author,  but  to  arrive  at  the  underlying  prin- 
ciples controlling  the  numerous  questions  involved  in  the 
subject,  to  distinguish  the  cases,  and  to  avoid  loading  the 
work  down  with  too  many  and  useless  citations. 

A  careful  study  of  the  decided  cases  proves  that  in 
many  of  them  the  courts  have  made  no  efibrt  to  ascertain 
upon  what  principle  a  given  rule  of  law,  affecting  the 
question,  should  be  maintained  or  overthrown,  but  have 
contented  themselves  with  laying  down  or  discarding  the 
rule,  and  citing  other  cases  which  have  done  the  same 
thing  in  the  same  way.  So  we  have  the  number  of  cases 
for  and  against  a  given  proposition  rising  in  columns 
higher  and  hjgher ;  the  true  or  accepted  rule  depending, 
too  often,  upon  the  height  of  one  column  or  the  other,  or 
the  weight  of  authority  according  to  numbers  for  or  against 
it.  Such  authorities  are  worth  nothing  to  the  practitioner, 
except  when  he  appears  before  a  court  which  is  controlled 
by  this  peculiar,  not  to  say  unfortunate,  rule,  of  deciding 
cases  by  such  a  test  of  the  weight  of  authority,  when  his 
diligence  in  unearthing  more  of  the  decided  cases  than  his 
opponent  is  sure  to  bring  him  success. 

The  intelligent  lawyer  looks  for  something  better  than 
this,  searches  for  the  guiding  principle  that  should  sustain 
him,  and  hopes  to  convince  the  court,  not  by  authorities 
alone,  but  by  reason  and  authority. 

An  earnest  effort  has  been  made  in  the  preparation  of 

(iii) 


iV  PREFACE. 

this  work  to  get  below  this  mass  of  cases  which  rest  one 
upon  another,  and  tind  out  why  a  given  principle,  or  rule 
of  law,  should  be  maintained,  and  cite  the  cases  by  which 
the  reason  for  the  rule  has  been  established.  In  many  in- 
stances this  has  been  a  laborious  and  difficult,  in  others  a 
hopeless  and  impossible,  task.  It  has  been  an  interesting 
and  useful  labor  to  the  author,  and  it  is  with  the  sincere 
hope  and  trust  that  it  will  be  of  practical  benefit  to  a  pro- 
fession the  work  of  which  becomes  more  and  more  labori- 
ous as  the  decided  cases  multiply  and  increase,  that  the 
work  of  the  author  is  now  given  over  to  the  publisher. 

Upon  many  of  the  propositions  laid  down,  the  mere 
citation  of  authorities  has  been  regarded  as  all  that  is 
needed ;  but  where  the  authorities  have  not  agreed,  upon 
material  questions  not  controlled  by  differing  local  statu- 
tory provisions,  the  cases  have  been  carefully  traced  back 
and  an  effort  made  to  ascertain  whicli  line  of  decisions  is 
sustained  by  the  better  reason,  the  reasons  given  have 
been  used  in  the  notes,  and  the  author's  own  conclusions 
have  not  been  withheld,  but  have  been  freely  given  for 
what  they  are  worth. 

The  cases  and  authorities  have  been  selected  with  great 
care,  and  with  no  effort  or  desire  to  render  the  book  im- 
posing by  their  number;  but  it  is  hoped  they  will  be  found 
sufficiently  numerous  to  make  it  practical  and  useful  to 
the  profession. 

The  work  has  been  rendered  much  more  difficult  and 
laborious  by  reason  of  the  fact  that  the  jurisdiction  of 
courts  has  come  to  be  controlled  and  regulated,  to  a  very 
great  extent,  by  the  statutes  of  the  several  states,  which 
differ  sufficiently,  upon  many  of  the  questions  involved,  to 
give  rise  to  conflicting  decisions  resting,  not  upon  reason  or 
principle,  or  upon  the  conviction  of  the  court  as  to  what  the 
true  rule  should  be,  but  upon  statutes  providing,  in  terms, 
that  it  shall  be  so  in  one  state  and  different  in  another. 

The  effort  has  been  made  to  avoid  cumbering  the  book 
with  a  discussion  of  questions  growing  out  of  local  laws, 
except  when  necessary  to  get  at  general  principles,  and  at 
the  same  time  not  to  avoid  the  labor  of  working  out,  as 


PREFACE.  V 

fully  as  possible,  any  complications  or  changes  growing 
out  of  and  resting  wholly  upon  them. 

It  will  be  seen  that  no  effort  has  been  made  to  treat  of 
common  law,  equity,  and  statutory  jurisdiction  as  separate 
and  distinct  branches  of  the  law  on  the  subject,  but  they 
have  been  treated  together,  upon  each  subject,  and  as  af- 
fecting them  all  in  a  greater  or  less  degree.  This  has 
been  done  because  it  is  believed  that  they  have  become  so 
intermingled  by  constitutional  and  statutory  provisions 
that  they  can  not  be  treated  separately,  in  the  same  work, 
without  useless  repetition  and  unnecessary  confusion.  It 
will  be  found,  however,  that  the  rules  and  principles  of 
the  common  law  and  of  equity,  as  well  as  the  statutory 
provisions  relating  to  each  subject,  have  been  carefully 
considered  and  distinguished  in  treating  of  that  subject. 

A  separate  discussion  of  the  specific  jurisdiction  of  the 
federal  courts  has  not  been  undertaken.  But  upon  each 
subject  considered  their  jurisdiction  has  been  fully  shown, 
and  the  distinguishing  features  of  the  functions  and  powers 
of  the  United  States  and  state  courts,  and  the  reasons 
therefor,  have  been  carefully  pointed  out. 

The  general  plan  of  the  work  has  been  to  discuss,  first, 
general  principles  affecting  jurisdiction,  and  to  follow 
with  a  consideration  of  the  means  of  acquiring  jurisdic- 
tion, including  the  issuance  and  service  of  process,  and 
then  to  take  up  each  subject  of  jurisdiction,  including  the 
various  writs  at  common  law,  in  equit}^,  and  under  statu- 
tory provisions,  with  a  view  to  cover  every  material 
branch  of  the  subject. 

Whether  the  work  has  been  so  done  as  to  render  it  of 
practical  benefit  is  now  submitted  to  the  judgment  of  the 
courts  and  the  profession.  J.  D.  W. 

San  Diego,  California,  September,  1894. 


TABLE  OP  CONTENTS. 


CHAPTER  I. 

COURTS. 


PAGE. 

1.  Defined 1 

2.  General  division  of 2 

3.  Common  law  and  equity  courts — in  England 3 

4.  Common  law  and  equity  courts — in  the  United  States 5 

5.  Military  and  maritime  courts 6 

H.  Courts  of  record  and  courts  not  of  record 7 

7.  Courts  of  general  and  superior,  and  of  inferior  and  special  juris- 
diction   10 


CHAPTER  II. 

GENERAL   PRINCIPLES   AFFECTING  JURISDICTION. 

8.  Jurisdiction  defined 16 

9.  Different  kinds  of  jurisdiction 23 

10.  How  jurisdiction  conferred  and  regulated 28 

11.  How  jurisdiction  obtained 30 

12.  Jurisdiction  of  the  subject-matter 32 

13.  Jurisdiction  of  the  person 36 

14.  Jurisdiction  in  rem 44 

15.  Territorial  jurisdiction 51 

16.  Jurisdiction  as  to  amount '. 59 

17.  Exclusive  and  concurrent  jurisdiction 68 

1 8.  Assistant  jurisdiction 74 

19.  Terms  of  court  as  affecting  jurisdiction 81 

20.  Special  and  inferior  jurisdiction ;  how  obtained  and  exercised. .  87 

21.  Original  and  appellate  jurisdiction 97 

22.  AV'hen  and  how  question  of  jurisdiction  may  be  raised 103 

2:!.  How  jurisdiction  proved  and  disproved 122 

24.  How  jurisdiction  may  be  lost,  taken  away,  or  suspended 146 

25.  Presumptions  in  favor  of  jurisdiction 155 

20.  Effect  of  want  of  jurisdiction 168 

27.  Inherent  powers  of  courts 170 

28.  Powers  of  illegal  and  de  facto  courts 181 

(vii) 


Vlll  TABLE    OF    CONTENTS. 

PAGE. 

29.  Constitutional  limitations  of  jurisdiction ]  83 

30.  Jurisdiction  in  summary  proceedings 196 

31.  Control  of  attorneys 198 


CHAPTER  III. 

MEANS  OF  ACQUIRING  JURISDICTION. 

32.  Generally 202 

33.  Due  process  of  law 206 

34.  Appearance  and  its  eifects 225 

35.  Nature  and  different  kinds  of  original  process 234 

36.  Requisites  of  process 239 

37.  Service  of  process 251 

38.  Constructive  service  of  process 266 

39.  Proof  of  service  of  process 287 

40.  Defective  process  and  service 297 

41.  Waiver  of  process  and  service  and  defects  therein 300 

42.  Of  new  parties  and  amended  pleadings 305 

43.  In  actions  against  corporations 308 

44.  Where  cross-complaint  is  filed 324 


CHAPTER  IV. 

VENUE. 

45.  Commencement  of  action  in  wrong  place  and  its  effects 326 

46.  Grounds  for  change  of  venue 334 

47.  Application  for  change  and  its  effects 338 

48.  Other  necessary  proceedings  to  procure  transfer 343 

49.  Waiver  as  to  venue 344 

50.  Counter  motion  to  retain  case. . . , 347 

51.  Order  for  change  and  its  effects 348 

62.  Remanding  cause 3p2 


CHAPTER  V. 

JUDGES. 

53.  Defined 354 

54.  Power  of  legislature  to  confer  or  take  away  jurisdiction 355 

55.  Power  of  legislature  to  impose  other  than  judicial   duties  on 

judges 360 

56.  General  powers  and  duties  of  judges 365 


TABLE    OF    CONTENTS.  IX 

PAGE. 

57.  Power  to  act  in  another  district 366 

58.  Authority  at  chambers 372 

59.  Authority  to  act  in  vacation 376 

60.  De  jure  and  de  facto  judges 379 

61 .  Special  judges 3S6 

62.  Juilges  disqualified  by  interest  or  otherwise 395 

68.  Bias  and  prejudice  of  judges  as  affecting  jurisdiction 412 

64.  Liability  of  judge  acting  without  jurisdiction. o .  414 


CHAPTER  VI. 

COMMON  LAW,  EQUITY,  AND   STATUTORY  JURISDICTION. 

65.  Generally 420 

66.  Constitutional  jurisdiction 426 

67.  Probate  jurisdiction 431 

68.  Special  cases  and  proceedings 461 

69.  Criminal  jurisdiction 469 

7C.  ]\Iaritime  jurisdiction 483 

71.  Impeachment 487 

72.  Contempts 488 

73.  Divorce 504 

74.  Attachments 518 

75.  Garnishment 547 

76.  Sales  of  real  estate 554 

77.  Arbitration 572 

78.  Ne  exeat  and  arrest  and  bail 581 

79.  Injunctions 588 

80.  Mandamus 61 4 

81.  Prohibition 627 

82.  Habeas  corpus 638 

83.  Que  warranto 659 

84.  New  trials  and  vacation  of  judgments 670 

85.  Writs  of  error 692 

86.  Certiorari 698 

87.  Bills,  and  writs,  of  review 722 

88.  Appeals. 727 

89.  Naturalisation 737 

90.  Pardons , , 742 


COURTS  AND  THEIR  JURISDICTION. 


CHAPTER  I. 

COURTS. 


1.  Defined. 

2.  General  division  of. 

3.  Common  law  and  equity  courts — in  England. 

4.  Common  law  and  equity  courts — in  the  United  States. 

5.  Military  and  maritime  courts. 

6.  Courts  of  record  and  courts  not  of  record. 

7.  Courts  of  general  and  superior,  and  of  inferior  and  special  juris- 

diction. 

1.  Defined. — A  court  is  defined  to  be  "  A  place  wherein 
justice  is  judicially  administered."^ 

And  as  "  a  body  in  the  government,  organized  for  the 
public  administration  of  justice  at  the  time  and  place 
prescribed  by  law."  ^ 

And  as  "  The  presence  of  a  sufficient  number  of  the 
members  of  a  body  in  the  government,  to  which  the 
public  administration  of  justice  is  delegated,  regularly 
convened  in  an  authorized  place  at  an  appointed  time,  en- 
gaged in  the  full  and  regular  performance  of  its  func- 
tions." 2 

The  judges  of  a  court  do  not,  necessarily,  constitute  the 
court.  The  judges,  as  such,  have  certain  powers  pertain- 
ing to  their  office  which  may  be  exercised  at  chambers. 
When  so  acting  they  are  not  a  court.  To  constitute  a 
court,  the  judge  or  judges  must  be  in  the  discharge  of 
judicial  duties  at  the  time  and  in  the  place  prescribed  by 
law  for  the  sitting  of  the  court.^ 

^  3  Blackstone's  Com.  23.  '•'  4  Am.  and  Eng.  Enc.  of  Law,  447. 

^Post,  sec.  19.  Hobart  v.  Hobart,  45  Iowa,  501,  503.  The  question  in 
this  case  was  whether  tlie  taking  of  evidence  before  a  referee  was  a  trial 
in  "open  court."  In  passing  upon  this  question,  the  court  said: 
*'  Blackst'jne,  adopting  Coke's  definition,  says  :  'A  court  is  a  place  where 


2  COURTS. 

One  of  the  important  attributes  of  a  court,  the  pro- 
ceedings of  which  must  be  recorded,  is  that  of  preserving 
such  proceedings  in  some  permanent  form.  This  is  a 
function  that  must  be  performed  by  the  clerk  or  protho- 
notary  of  the  court.  Therefore  the  presence  of  such  clerk 
or  prothonotary  is  necessary  to  constitute  a  court  of  rec- 
ord. "A  court  is  an  incorporeal  political  being,  which  re- 
quires, for  its  existence,  the  presence  of  the  judges,  or  a 
competent  number  of  them,  and  a  clerk  or  prothonotary, 
at  the  time  during  which,  and  at  the  place  where  it  is  by 
law  authorized  to  be  held;  and  the  performance  of  some 
public  act,  indicative  of  a  design  to  perform  the  functions 
of  a  court."  * 

"A  tribunal  established  for  the  public  administration  of 
justice,  and  composed  of  one  or  more  judges,  who  sit  for 
that  purpose  at  fixed  times  and  places,  attended  by  proper 
officers."  ^ 

A  court  of  common  law  is  defined  to  be  "  a  court  which 
administers  justice  acccording  to  the  principles  and  forms 
of  the  common  law,"  and  a  court  of  chancery  as  one 
"  which  proceeds  wholly  according  to  the  principles  of 
equity."  - 

2.  General  division  of  courts. — Courts  may,  for  con- 
venience of  arrangement,  and  the  consideration  necessary 
to  give  them  here,  be  divided  into :  1.  Common  law  and 
equity  courts.  2.  Military  and  maritime  courts.  3.  Courts 
of  record  and  courts  not  of  record.  4.  Courts  of  superior 
and  general  jurisdiction,  and  courts  of  inferior  and  special 
jurisdiction. 

justice  is  judicially  administered.'  But  this  definition  obviously  wants 
fullness ;  it  is  limited  to  the  place  of  a  court  in  its  expression.  In  addi- 
tion to  the  place,  there  must  bo  the  presence  of  the  officers  constituting 
the  court,  the  judge  or  judges  certainly,  and  probably  the  clerk  author- 
ized to  record  the  action  of  the  court ;  time  must  be  regarded,  too,  for 
the  officers  of  a  court  must  be  present  at  the  place  and  at  the  time  ap- 
pointed bylawin  order  to  constitute  a  court.  To  give  existence  to  a 
court,  then,  its  officers,  and  the  time  and  place  of  holding  it,  must  bo 
such  as  are  prescribed  by  law." 
^  Bouvier's  Law  Die,  title  Court.  '■'  Anderson's  Die.  of  Law,  274. 


COMMON    LAW    AND    EQUITY    COURTS,    IN    ENGLAND.  d 

3.  Common  law  and  equity  courts,  in  England. — The 
distinction  between  law  and  equity  courts  is  not  as  impor- 
tant now  as  it  was  before  the  enactment  of  the  codes  in 
many  of  the  states,  and  of  the  judicature  acts  in  England. 
The  principal  common  law  and  equity  courts  of  England-, 
as  mentioned  in  Blaekstone's  Commentaries,  were  the 
court  of  common  pleas,  the  court  of  king's  bench,  the 
court  of  exchequer,  the  high  court  of  chancery,  the  court 
of  exchequer  chamber,  and  the  house  of  peers.^ 

Of  these,  all  were  common  law  courts,  so  far  as  their 
original  jurisdiction  was  concerned,  except  the  court  of 
exchequer,  which  was  both  a  court  of  law  and  a  court  of 
equity,  and  the  high  court  of  chancery,  which  exercised 
certain  functions  of  a  legal  character,  although  its  most  im- 
portant jurisdiction  was  that  of  a  court  of  equity. 

By  what  are  known  as  the  judicature  acts  of  England, 
all  of  these  courts,  except  the  exchequer  chamber  and 
house  of  peers,  were  consolidated  into  one  court,  denom- 
inated the  supreme  court  of  judicature  of  England.^ 

The  supreme  court  of  judicature  consists  of  two  perma- 
nent divisions,  viz.,  the  high  court  of  justice,  and  the 
court  of  appeal.^ 

The  high  court  of  justice  was  originally  divided  into 
five  divisions,  called,  respectively,  the  chancery  division, 
the  queen's  bench  divisioij,  the  common  pleas  division,  the 
exchequer  division,  and  the  probate,  divorce,  and  admiralty 
division.* 

And  while  the  common   law,  equity,  admiralty,  eccle- 

'  3  Blk.  Com.  36  et  seq. 

'  "  From  and  after  the  time  appointed  for  the  commencement  of  this 
act,  the  several  courts  hereinafter  mentioned  (that  is  to  say),  the  high 
court  of  chancery  of  England,  the  court  of  queen's  bench,  the  court  of 
common  pleas  at  Westminster,  the  court  of  exchequer,  the  high  court 
of  admiralty,  the  court  of  probate,  the  court  for  divorce  and  matrimo- 
nial causes,  and  the  London  court  of  bankruptcy,  shall  be  united  and 
consolidated  together,  and  shall  constitute,  under  and  subject  to  the 
provisions  of  this  act,  one  supreme  court  of  judicature  of  England." 
iSupreme  Court  of  Judicature  act  of  1873,  pt.  1,  sec.  3 ;  Foulke's  Ac.  in 
Sup.  Ct.  2,  12. 

3  Sup.  Ct.  Jud.  Act,  pt.  1,  sec.  4;  Foulke's  Ac.  in  Sup.  Ct.  14. 

*  Ibid. 


4  COURTS. 

siastical,  and  bankruptcy  courts  were  thus  consolidated, 
the  distinction  between  them,  and  the  jurisdiction  formerly 
exercised  by  each,  was  kept  separate,  in  a  manner,  by  con- 
ferring upon  each  of  these  several  divisions,  designated  by 
the  names  of  the  former  courts,  the  same  jurisdiction  that 
was  formerly  vested  in  the  several  courts  of  like  name.* 
But  this  division  was  not  necessarily  permanent.  The 
right  to  distribute  the  causes  and  matters,  coming  before 
the  court,  to  the  several  divisions  of  the  high  court  of  jus- 
tice, may  be  regulated  and  changed  by  the  judges  in 
council  under  certain  restrictions.^  In  1880,  the  common 
pleas  and  exchequer  divisions  were  consolidated  into  the 
queen's  bench  division,  thus  reducing  the  number  of  di- 
visions to  three.^  And  the  business  that  formerly  belonged 
to  the  common  pleas  and  exchequer  divisions  was,  by  this 
order,  transferred  to  the  queen's  bench  division. 

The  greater  part  of  the  law  relating  to  the  practice  and 
forms  of  proceeding  under  the  judicature  acts  will  be 
found  in  the  rules  and  orders  of  court.  It  is  provided  by 
one  of  these  rules  that  the  party  commencing  the  action 
shall  indorse  on  the  writ  of  summons  the  division  of  tiie 
high  court  to  which  it  is  intended  that  the  actioti  should 
be  assigned.*  But  this  is  "  subject  to  the  exclusive  assign- 
ment of  certain  business  to  each  division,  being  generally 
such  business  as  the  court  which  it  represents  exclusively 
transacted,"  and  subject  to  the  power  of  the  court  to  trans- 
fer business  from  one  division  to  another.® 

These  divisions  of  the  court  are  not  separate  courts,  nor 
are  they  so  treated  in  practice.  Each  of  the  judges  of 
either  of  the  divisions  represents  the  power  and  jurisdiction 
of  the  supreme  court  of  judicature,  and  not  the  particular 
division  of  the  court  in  which  he  may  for  the  time  be 
acting.® 

"The  judges  are  distributed  among  the  divisions, 
namely :  six  to  the  chancery  division,  the  lord  chancellor 

1  Sup.  Ct.  of  Jud.  Act.,  pt.  1,  sec.  34.  ^  j^^j   j^^t,  1873,  sec.  32. 

^  Wilson's  Jud.  Acts,  p.  42 ;  Foulke's  Ac.  in  the  Sup.  Ct.  18. 
*  Order  11,  1.  ^  Foulke's  Ac.  in  the  Sup.  Ct.  19. 

«  Jud.  Act,  1873,  sec.  39 ;  Foulke's  Ac.  in  Sup.  Ct.  19. 


COMMON    LAW    AND    EQUITY    COURTS — UNITED    STATES.  5 

being  president ;  fifteen  to  the  queen's  bench  division,  the 
lord  chief-justice  of  England  being  president ;  and  two  to 
the  probate,  divorce,  and  admiralty  division,  the  senior 
judge  being  president.  The  business  of  each  division, 
important  enough  to  be  brought  before  several  judges,  is 
in  general  transacted  by  a  divisional  court  composed  of 
judges  belonging  to  that  division  ;  but  there  is  nothing  to 
prevent  a  divisional  court,  composed,  for  instance,  of 
judges  of  one  division,  entertaining  questions  arising  in  a 
cause  assigned  to  another  division,  except  that  so  far  as 
practicable  one  judge  of  the  division  to  which  the  cause  is 
assigned  is  to  be  of  the  divisional  court  which  adjudicates 
upon  it."  ^ 

4.  Common  law  and  equity  courts,  in  the  United 
States. — We  have  in  this  country  a  system  of  federal 
courts  and  a  separate  and  distinct  system  of  courts  in  each 
of  the  states.  It  is  not  the  purpose,  in  this  connection,  to 
attempt  to  designate  by  name,  or  in  any  other  way,  the 
various  courts  of  common  law  and  equity  jurisdiction  in 
the  several  states.^ 

In  those  states  which  have  adopted  the  code  system  of 
practice,  the  courts  of  general  original  jurisdiction  are 
much  the  same,  although  they  are  differently  named.  In 
some  of  the  states  they  have  circuit  courts,  in  others  dis- 
trict courts,  in  others  superior  courts,  in  others  supreme 
courts;  in  some  they  have  both  circuit  courts  and  superior 
courts,  or  district  and  superior  courts,  and  in  some  the 
court  of  common  pleas  still  exists.  There  are,  of  course, 
other  courts  having  special  and  inferior  jurisdiction,  espe- 
cially in  probate  matters.  But  in  many  of  the  states  there 
is  but  one  court  of  general  original  jurisdiction,  which  takes 
cognizance  of  all  business,  civil,  criminal,  and   probate. 

*  Foulke's  Ac.  in  Sup.  Ct.  19.  A  very  interesting  description  and  his- 
tory of  the  courts  of  England,  by  Elliott  Anthony,  will  be  found  in  the 
Am.  Law  Review,  vol.  25,  page  1. 

^  A  very  full  description  of  the  courts  of  this  country,  and  a  general 
statement  of  their  jurisdiction,  will  be  found  in  Stimson's  Am.  Statute 
Law,  sec.  550  et  seq. 


6  COURTS. 

There  are  very  few  of  the  states,  at  the  present  day,  in 
wliich  there  is  a  division  of  courts  into  common  law  and 
equity  courts,  but  in  some  the  distinction  between  com- 
mon law  and  equity  practice  is  preserved,  and  the  law  and 
equity  courts  are  still  maintained.' 

The  distinction  between  common  law  and  equity  is  still 
maintained  under  the  federal  practice,  but  both  common 
law  and  equitable  remedies  are  administered  by  the  same 
courts,  these  courts  having  their  law  and  equity  sides. 
The  principal  federal  courts  of  general  original  jurisdic- 
tion are  the  circuit  and  district  courts,  both  of  which  ex- 
ercise both  law  and  equity  jurisdiction.^ 

The  supreme  court  has  original  jurisdiction,  to  a  lim- 
ited extent,  both  at  law  and  in  equity.'  And  the  same  is 
true  of  the  court  of  claims.* 

5.  Military  and  maritime  courts. — The  court  of  chiv- 
alry, of  England,  had  "  cognizance  of  contracts  touching 
deeds  of  arms  or  of  war,  out  of  the  realm,  which  could 
not  be  determined  or  discussed  by  the  common  law,  to- 
gether with  other  usages  and  customs  to  the  same  matters 
appertaining."  It  was  almost  entirely  a  "  court  of  honor," 
and  was  of  but  little  consequence.^ 

The  maritime  and  admiralty  courts  of  England  had  ju- 
risdiction to  try  and  determine  all  maritime  causes,  or 
causes  arising  wholly  upon  the  sea,  and  not  within  any 
county.®  By  the  judicature  acts  this  court  has  been 
merged  in  the  high  court  of  justice.^ 

In  this  country  the  greater  part  of  the  maritime  juris- 
diction belongs,  of  necessity,  to  the  federal  courts.  We 
have  no  state  maritime  courts,  or.  military  courts  of  civil 
jurisdiction — except  in  some  of  the  states  maritime  courts 

'  Harris  v.  Vander veer's  Ex.,  21  N.  J.  Eq.  424. 

»  Rev.  Stat.  U.  S.,  sees.  563,  629;  Foster's  Fed.  Pra'c,  p.  20,  sec.  13;  p. 
21,  sec.  15 ;  p.  34,  sec.  25. 
'  Rev.  Stat.  U.  S.,  sec.  687 ;  Foster's  Fed.  Prac,  p.  20,  sec.  14. 
*  Rev.  Stat.  U.  S.,  sec.  1059;  Foster's  Fed.  Prac,  p.  20,  sec.  13. 
'=  3  Black.  Com.  103.  ^  3  Black.  Com.  106. 

'  Jud.  Act,  1873,  sec.  16. 


COURTS    OF    RECORD   AND    COURTS    NOT   OF    RECORD.  7 

are  established  in  certain  cities.  The  maritime  jurisdic- 
tion of  the  federal  courts  belongs  mainly,  but  not  wholly, 
to  the  district  court.^ 

6.  Courts  of  record  and  courts  not  of  record. — The 
question  as  to  what  is  necessary  to  constitute  a  court  of 
record  has  never  been  satisfactorily  answered.  Many  tests 
have  been  laid  down  in  an  effort  to  distinguish  between  a 
■court  of  record  and  one  not  of  record,  but  none  of  these 
tests  have  been  received  and  acted  upon  as  conclusive  or 
satisfactory. 

Blackstone's  definition  of  a  court  of  record  is :  "A 
court  of  record  is  that  where  the  acts  and  judicial  pro- 
ceedings are  enrolled  in  parchment  for  a  perpetual  memo- 
rial and  testimony."  -  This  is  the  generally  received  idea 
of  a  court  of  record.  The  definition  here  given  is  implied 
in  the  name  of  the  court.  But  this  definition  has  been 
condemned  by  the  courts  in  modern  days  as  being  wholly 
inaccurate.^ 

Another  of  the  tests  applied  to  courts  of  record  was  the 
possession  of  the  right  to  fine  and  imprison  for  contempt; 
but  it  has  been  determined  that  every  court  of  record  does 
not  possess  this  jiower.  In  many  of  the  decided  cases  the 
extent  of  the  jurisdiction  of  a  court,  or  whether  it  be  a 
■court  of  superior  or  inferior  jurisdiction,  is  made  the  test.* 

'  Rev.  Stat.  U.  S.,  sec.  5G3,  sub.  8. 

^  3  Blk.  Com.  24;  Anderson's  Die.  of  Law,  275. 

^  31  Cent.  Law  Jour.  86. 

*  In  Hahn  v.  Kelly,  34  Cal.  391,  422  (94  Am.  Dec.  742),  the  court  said: 
"At  common  law,  'a  recor.l  signifies  a  roll  of  parchment  upon  which  the 
proceedings  and  transactions  of  a  court  are  entered  or  drawn  up  by  its 
officers,  and  which  is  then  deposited  in  its  treasury  in  perpeiuam  rei 
memoriam.'  (3  Steph.  Com.  583;  3  Blk.  Com.  24;  2  Burr.  Law  Die,  tit. 
Record.)  'A  court  of  record  is  that  where  the  acts  and  judicial  pro- 
ceedings are  enrolled  in  parchment  for  a  perpetual  memorial  and  testi- 
mony, which  rolls  are  called  the  records  of  the  court,  and  are  of  such 
high  and  super-eminent  authority  that  their  truth  is  not  to  be  called  in 
question.'  In  courts  not  of  record  the  proceedings  are  not  enrolled. 
The  privilege  of  having  these  enrolled  memorials  constitutes  the  great 
leading  distinction,  in  Llnglish  and  American  law,  between  courts  of 
record  and  courts  not  of  record,  or,  as  they  are  frequently  designated, 
•superior  and  inferior  courts.     'In  the  United  States  i>ap('r  lias  uiiivr- 


8  COURTS. 

The  question  whether  courts  of  justices  of  the  peace  are 
or  are  not  courts  of  record  has  frequently  arisen,  and  upon 
this,  as  upon  almost  every  branch  of  the  subject,  the  de- 
cided cases  are  conflicting.^ 

It  will  be  seen  that  in  some  of  the  cases  cited  it  is  held 
that  if  the  law  of  the  state  in  which  the  court  is  situated 
requires  it  to  keep  a  record,  it  should  be  regarded  as  a 
court  of  record.  In  others,  the  fact  that  such  a  court  has 
no  clerk  to  keep  its  records  is  conclusive  against  its  being 
a  court  of  record.  But  this  does  not  seem  to  be  a  suffi- 
cient reason  for  excluding  it  from  this  class  of  courts. 
Where  the  justice  is  required  to  keep  a  record,  and  no 
clerk  is  provided,  he  becomes  his  own  clerk,  and  no  good 
reason  appears  for  holding  that  the  want  of  a  clerk  can 
change  the  character  of  the  court. 

It  is  sometimes  held,  with  reference  to  courts  of  justices 
of  the  peace  and  other  inferior  courts,  that  they  are  not 
courts  of  record  because  they  derive  their  authority  from 
statute,  and  do  not  proceed  according  to  the  course  of 
the  common  law.^ 

In  many  of  the  decided  cases  the  common  law  is  in- 
voked to  determine  the  dignity  of  the  court,  it  being  held 

sally  supplied  the  place  of  parchment  as  the  material  of  the  record,  and 
the  roll  form  has,  on  that  account,  fallen  into  disuse ;  but  in  other  re- 
spects the  forms  of  the  English  records  have,  with  some  modifications, 
been  generally  adopted.'  (Burr.  Law  Die,  tit.  Record.)  But  whether 
in  parchment  or  in  paper,  in  the  roll  form  or  otherwise,  this  judgment 
roll  is  what  is  known  in  law  as  the  record — the  technical  record — and  is 
what  is  meant  by  courts  and  law  writers  when  they  speak  of  records  of 
superior  courts  or  courts  of  record." 

'  Following  are  some  of  the  cases  in  which  a  justices  court  is  held  to 
be  a  court  of  record:  Fox  r.  Hunt,  12  Conn.  491;  31  Am.  Dec.  7G0 ; 
Hooker  v.  The  State,  7  Blkf.  (Ind.)  272;  Draggoo  r.  Graham,  9  Ind. 
212,  214  ;  Pressler  v.  Turner,  57  Ind.  56.  And  the  following  cases  are  to 
the  contrary :  Snyder  v.  Wise,  10  Pa.  St.  157 ;  Cox  c.  Groshong,  1  Pin. 
(Wis.)  307,  311. 

*  In  Snyder  v.  Wise,  10  Pa.  St.  157,  158,  the  court  say,  after  reviewing 
the  authorities:  "  But  the  sounder  opinion  is  that  the  courts  of  justices 
of  the  peace  are  not  courts  of  record.  They  do  not  proceed  according 
to  the  course  of  the  common  law,  but  derive  their  authority  wholly 
from  statute,  and  must,  therefore,  like  all  other  inferior  tribunals,  show 
it  in  every  instance."     Anderson's  Die.  of  Law,  275.     Seepo*/,  sec.  25. 


COURTS    OF    RECORD    AND    COURTS    NOT    OF    RECORD.  9 

that  in  order  to  constitute  it  a  court  of  record  its  proceed- 
ings must  be  according  to  the  course  of  the  common  law.* 

This  excludes  all  courts  of  inferior  jurisdiction  which 
are  created,  and  their  jurisdiction  limited  and  controlled 
by  statute.^  The  fact  that  a  court  has  a  clerk  and  a  seal 
does  not  render  it  a  court  of  record.^  And  it  is  held  that 
where  a  court  of  general  jurisdiction  has  summary  pow- 
ers conferred  upon  it  which  are  wholly  derived  from 
statute  and  not  exercised  according  to  the  course  of  the 
common  law,  its  decisions  must  be  treated  like  those  of 
a  court  of  inferior  and  special  jurisdiction.* 

It  will  be  seen  from  the  authorities  cited  that  no  definite 
rule  can  be  laid  down  as  to  what  is  necessary  to  constitute 
a  court  of  record  in  this  country.  In  those  states  in  which 
the  distinction  between  common  law  and  equity,  with 
respect  to  matters  of  form  and  the  modes  of  practice 
and  procedure,  has  been  abolished,  the  attempt  to  divide 
courts,  in  measuring  the  extent  of  their  jurisdiction,  into 
such  as  proceed  according  to  the  common  law  and  those 
created  and  controlled  by  statute,  is  entirely  inappropriate. 
And  aside  from  this,  such  a  test  of  a  court  of  record  is  un- 
certain and  unsatisfactory.  The  only  safe  and  reliable 
rule  is  the  one  implied  in  the  designation  of  the  court. 
If  a  court  is  required  by  law  to  keep  a  record  of  its  pro- 
ceedings, no  matter  whether  by  a  clerk  or  by  the  judge  or 
justice  of  the  peace,  it  should  be  treated  as  just  what  it 
really  is,  a  court  of  record,* 

^  "A  court  of  record  is  a  judicial,  organized  tribunal,  having  attributes 
and  exercising  functions  independently  of  the  person  of  the  magistrate 
designated  generally  to  hold  it,  and  proceeding  according  to  the  course  of  the 
common  law."  4  Am.  &  I^ng.  Enc.  of  Law,  452 ;  In  the  matter  of  Peter 
Kerrigan,  33  N.  J.  Law,  344;  Cox  v.  Groshong,  1  Pin.  (Wis.)  307;  Brown 
V.  Goble,  97  Ind.  88 ;  Anderson's  Die.  of  Law,  275. 

"  But  see  on  this  point,  post,  sec.  25. 

2  Hutkoff  V.  Demorest,  10  N.  E.  Rep.  535. 

*  Furgeson  v.  Jones,  17  Or.  204;  20  Pac.  Rep.  842. 

^  "  It  was,  to  be  sure,  the  judgment  of  a  justice  of  the  peace  that  was 
in  question,  but  his  court  must  be  considered  as  a  court  of  record.  A 
court  that  is  bound  to  keep  a  record  of  its  proceedings,  and  that  may 
fine  or  imprison,  is  a  court  of  record.  A  justice's  court  is  within  this 
definition."     Hooker  v.  The  State,  7  Blkf.  272,  275. 


10  COURTS. 

But,  unfortunately,  this  means  of  distinguishing  between 
courts  of  record  and  courts  not  of  record  has  not  been 
universally,  or  even  generally,  adopted  or  received  as  the 
true  test,  nor  have  we  any  other  test  by  which  they  can 
be  distinguished  that  has  been  generally  adopted. 

In  some  of  the  states  this  uncertainty  has  been  removed 
by  a  direct  statutory  provision.  In  New  York  and  some 
other  states  the  code  provides  what  courts  are  and  what 
courts  are  not  courts  of  record.^ 

7.  Courts  of  general  and  superior  and  of  inferior  and 
SPECIAL  JURISDICTION. — The  distinctions  between  courts  of 
general  and  superior  jurisdiction  and  those  which  are  of 
special  and  inferior  jurisdiction,  are  not  more  satisfactorily 
determined  and  agreed  upon  than  the  distinctions  between 
courts  of  record  and  courts  not  of  record.^ 

The  question  whether  a  court  belongs  to  one  or  the 
other  of  these  classes  is  usually  made  to  depend  upon  the 
effect  of  its  decision  when  rendered.  If  its  decision  is 
conclusive,  except  upon  appeal,  without  an  affirmative 
showing  of  jurisdiction,  by  its  proceedings  or  otherwise,  it 
is  a  court  of  superior  jurisdiction.  If,  on  the  other  hand, 
nothing  can  be  presumed  in  favor  of  its  jurisdiction,  and 
its  power  to  act  must  appear  on  the  face  of  its  proceed- 
ings, or  its  decisions  be  treated  as  a  nullity,  it  is  a  court  of 
inferior  jurisdiction.' 

1  Throop's  An.  Code  Civ.  Pro.  (N.  Y.),  sees.  2,  3 ;  Hutkoff  v.  Demorest, 
10  N.  E.  Rep.  535 ;  Code  Civ.  Pro.  Cal.,  sees.  33,  34. 

'  12  Am.  &  Eng.  Enc.  of  Law,  265.  "The  question  seems  to  have  re- 
solved itself  into  one  of  public  policy,  and  whether  the  particular  court 
of  the  limited  jurisdiction  ought  to  have  extended  to  its  judgment  the 
sanctity  of  the  presumptions  arising  from  the  adjudications  of  tribunals 
of  general  common  law  jurisdiction.  That  the  underlying  and  control- 
ling principle  upon  which  the  question  must  be  decided  is  simply  a  con- 
sideration of  correct  public  policy,  is  indicated  by  the  language  employed 
by  the  Supreme  Court  of  Vermont  in  Wright  v.  Hazen,  24  Vt.  143."  Ex 
parte  Kearny,  55  Cal.  216. 

^  "The  true  line  of  distinction  between  courts  whose  decisions  are 
conclusive  if  not  removed  to  an  appellate  court,  and  those  whose  pro- 
ceedings are  nullities  if  their  jurisdiction  does  not  appear  on  their  face, 
is  this:  A  court  which  is  competent,  by  its  constitution,  to  decide  on  its 
own  jurisdiction  and  to  exercise  it  to  a  final  judgment,  without  setting 


COURTS    OF    GENERAL    AND    OF    INFERIOR    JURISDICTION.       11 

But  the  great  difficulty  is  to  determine  whether  a  court 
is  one  whose  decision  is  sufficient  evidence  of  its  own 
jurisdiction  or  not.  In  many  of  the  decided  cases  the 
question  is  made  to  turn  upon  the  kindred  one,  discussed 
in  the  last  preceding  section,  viz.,  whether  the  court  is 
one  of  record  or  not.  So  we  proceed  in  a  circle  with  very 
unsatisfactory  results.  A  court  may  be  one  of  inferior 
jurisdiction  in  the  technical  sense  of  the  term,  that  is,  in 
the  sense  that  its  judgments  are  subject  to  reversal  or 
modification  by  a  court  having  appellate  jurisdiction  over 
it,  and  yet  be  a  court  of  superior  jurisdiction,  as  contra- 
distinguished from  courts  of  inferior  jurisdiction,  because 
their  powers  are  limited  and  special.  In  a  technical  sense 
all  courts,  except  those  of  last  resort,  are  inferior  courts.^ 

Whether  a  court  is  one  of  general  or  special  jurisdiction 
is  said  to  depend  upon  whether  its  authority  extends  to  a 
great  variety  of  matters  or  only  to  certain  specified  cases.^ 

And  a  court  of  inferior  or  special  jurisdiction  can  thus 
be  ascertained  if  its  authority  is  limited  to  certain  speci- 
fied cases.  Such  a  court  is  treated  as  one  of  inferior 
jurisdiction  because,  in  order  to  authorize  it  to  act,  it 
must  appear  upon  the  face  of  its  proceedings  that  the  case 
before  it  is  one  of  the  specified  cases  over  which  it  is  given 
authority.^ 

forth  in  their  proceedings  the  facts  and  evidence  on  which  it  is  ren- 
dered, whose  record  is  absolute  verity,  not  to  be  impugned  by  averment 
or  proof  to  the  contrary,  is  of  the  first  description ;  there  can  be  no 
judicial  inspection  behind  the  judgment  save  by  appellate  power.  A 
court  which  is  so  constituted  that  its  judgment  can  be  looked  through 
for  the  facts  and  evidence  which  are  necessary  to  sustain  it;  whose  de- 
cision is  not  evidence  of  itself  to  show  jurisdiction  and  its  lawful  exer- 
cise, is  of  the  latter  description."  Grignon  v.  Astor,  2  How.  319,  341 ; 
Borden  v.  State,  11  Ark.  519;  54  Am.  Dec.  217. 

1  McCormick  v.  Sullivant,  10  Wheat.  192 ;  Borden  v.  State,  11  Ark.  519 ; 
54  Am.  Dec.  217,  232 ;  12  Am.  &  Eng.  Enc.  of  Law,  26(3 ;  Anderson's  Die. 
of  Law,  275. 

^  "Some  courts  are  of  general  jurisdiction,  by  which  is  meant  that 
their  authority  extends  to  a  great  variety  of  matters;  while  others  are 
only  of  special  and  limited  jurisdiction,  by  which  it  is  understood  that 
they  have  authority  extending  only  to  certain  specified  cases."  Cooley 
Const.  Lim.,  oth  ed.,  502. 

^  Post,  sees.  2;),  25;  Cooley  Const.  Lim.,  5th  ed.,  502. 


12  COURTS. 

In  the  sense  that  a  court  which  has  jurisdiction  only  in 
specilied  cases  is  one  of  special,  and  therefore  of  inferior 
jurisdiction,  all  of  the  federal  courts,  except  the  supreme 
court,  have  heen  held  to  be  inferior  courts,  on  the  ground 
that  they  have  no  general,  or  common  law  jurisdiction, 
but  only  such  jurisdiction  as  is  specially  conferred  upon 
them  by  positive  law.^  But,  as  we  shall  see  when  we 
come  to  consider  the  question  of  jurisdiction,^  they  are 
not  so  in  the  sense,  or  to  the  extent  that  their  proceedings, 
outside  of  their  jurisdiction,  are  nullities,  or  that  the  facts 
affirmatively  appearing  on  the  face  of  their  proceedings 
may  be  disproved  and  disregarded.^  Nor  can  their  judg- 
ments be  attacked  except  upon  appeal,  or  writ  of  error, 
where  their  authority  to  act  does  not  affirmatively  appear 
on  the  face  of  their  proceedings.* 

So  it  will  not  do  to  rely  upon  the  distinction  between 
courts  of  general  and  those  of  special  or  limited  jurisdic- 

'  Cooley's  Const.  Lim.,  5th  ed.,  27 ;  McCormickr.  Sullivant,  10  Wheat. 
192;  Hahn  r.  Kelly,  34  Cal.  413;  94  Am.  Dec.  742;  United  States  v. 
Southern  Pac.  R.  Co.,  49  Fed.  Rep.  300. 

2  Post,  sees.  23,  25. 

^  "  But  this  reason  proceeds  upon  an  incorrect  view  of  the  character 
and  jurisdiction  of  the  inferior  courts  of  the  United  States.  They  are 
all  of  limited  jurisdiction;  but  they  are  not  on  that  account  inferior 
courts,  in  the  technical  sense  of  those  words,  whose  judgments,  taken 
alone,  are  to  be  disregarded.  If  the  jurisdiction  be  not  alleged  in  the 
proceedings,  their  judgments  and  decrees  are  erroneous,  and  may,  upon 
a  writ  of  error  or  appeal,  be  reversed  for  that  cause.  But  they  are  not 
absolute  nullities."     McCormick  v.  Sullivant,  10  Wheat.  192,  199. 

*  "But  the  present  judgment  was  neither  fraudulent  on  its  face  nor 
even  voidable.  Had  it  been  rendered  on  the  special  counts  alone,  it 
might  have  been  voidable  by  a  writ  of  error  for  not  alleging  jurisdiction 
in  the  pleadings.  (See  ante,  2  How.  243;  Capron  v.  Van  Norden,  2 
Cranch,  126.)  But  it  has  been  repeatedly  settled  that  even  then,  with- 
out any  plea  to  the  jurisdiction,  and  after  a  verdict  for  the  plaintiff  on 
the  general  issue  and  final  judgment,  it  is  not  a  nullity,  but  must  be  en- 
forced till  duly  reversed.  (Kemp's  Lessee  v.  Kennedy,  5  Cranch,  185, 
and  Skillern's  Executors  v.  May's  Executors,  6  Cranch,  267 ;  McCormick 
V.  Sullivant,  10  Wheat.  192;  Voorhees  v.  Bank  of  United  States,  10  Pe- 
ters, 449 ;  Meyer  v.  Zane,  3  Ohio,  306 ;  Wilde  v.  Commonwealth,  2  Mete. 
408;  Hopkins  v.  Commonwealth,  3  Mete.  460.)  Because  it  would  be  a 
judgment  rendered  by  a  court  not  of  inferior,  but  only  limited  jurisdic- 
tion, and  the  merits  would  have  been  investigated  and  decided  by  con- 
sent."    Bank  of  United  States  v.  Moss,  6  How.  31,  39. 


COURTS    OF    GENERAL    AXD    OF    INFERIOR    JURISDICTION.       13 

tion,  in  the  effort  to  distinguish  between  courts  of  superior 
and  those  of  inferior  jurisdiction. 

It  must  be  apparent  from  what  has  been  said,  and  tlie 
authorities  cited,  that  the  Hne  of  demarkation  between 
courts  of  superior  and  those  of  inferior  jurisdiction  has, 
never  been  definitely  determined,  and  perhaps  never  will 
be.  It  seems  that  it  must  be  left  to  a  separate  decision, 
us  affecting  each  court,  where  there  is  any  doubt  as  to  the 
class  to  which  it  belongs,  by  the  court  of  last  resort  in  the 
state  where  it  is  situated.' 

1  In  the  case  of  Hahn  v.  Kelly,  34  Cal.  391,  411  (94  Am.  Dec.  742),  this 
question  received  careful  attention.  In  that  case  the  court  said  :  "  Not 
universally,  but  frequently,  we  find  the  words  '  superior  courts  '  accom- 
panied by  the  phrase  '  proceeding  according  to  the  course  of  the  com- 
mon law.'  What  does  this  phrase  mean?  Does  it  operate  as  a  limita- 
tion upon  the  rule?  Does  it  mean  that  when  a  superior  court  is  pro- 
ceeding according  to  the  rules  and  practice  of  the  common  law  its 
jurisdiction  will  be  presumed ;  but  that  when  it  is  proceeding  according 
to  rules  and  practice  prescribed  by  a  statute  its  jurisdiction  will  not  be 
presumed,  but  must  be  shown  ?  Does  it  mean  that  the  same  court 
is  superior  or  inferior  according  to  circumstances — that  it  is  superior 
when  it  works  according  to  common  law,  and  inferior  when  it  works 
according  to  statute  law  ;  if  it  does,  what  is  the  reason  upon  which  the 
distinction  wliich  it  makes  is  founded?  Unless  those  who  have  used  the 
expression  can  give  us  a  reason  for  the  distinction  which  it  seems  to  make, 
which  reason  is  satisfactory,  we  must  conclude  that  there  is  none,  and 
that  they  have  used  the  expression  without  license.  We  have  been  un- 
able to  find  any  reason  for  such  a  distinction,  none  has  been  suggested, 
and  every  reason  which  occurs  to  us  points  the  other  way.  .  .  . 
When  first  employed  its  use  was  harmless,  for  there  was  then  no  mode 
of  procedure  except  such  as  the  comnion  law  prescribed ;  but  its  con- 
tinued use,  where  the  modes  of  the  common  law  have  been  superseded, 
is  mischievous.  Upon  an  examination  of  the  books  it  will  be  found 
that  our  most  accurate  writers  do  not  use  the  expression  when  speaking 
of  the  present  or  cognate  rules.  The  only  distinction  which  they  make 
is  represented  by  the  words  'superior'  and  'inferior,'  'limited'  and 
''general,'  and  such,  in  our  judgment,  is  the  only  distinction  which  ex- 
ists ;  and  there  is  no  satisfactory  reason  for  a  further  distinction  founded 
upon  a  supposed  departure  from  the  modes  in  vogue  at  common  law, 
for  the  purpose  of  obtaining  jurisdiction.  .  .  .  The  doctrine  con- 
tended for,  pu.shed  to  its  ultimate  conclusion,  would  abrogate  the  rule 
in  this  state,  and  dwarf  all  our  courts  to  the  grade  of  inferior  courts  at 
common  law.  The  jurisdiction  of  all  our  courts  is  special  and  limited, 
as  defined  by  the  constitution,  and  they  do  not  proceed  according  to  the 
course  of  the  common  law,  but  according  to  the  course  of  the  practice 


14  COURTS. 

The  confusion  that  exists  in  the  decided  cases  on  this 
subj'ect  arises,  to  some  extent,  from  a  failure,  in  some  of 
the  cases,  to  distinguish  between  courts  of  limited  and 
courts  of  special  jurisdiction ;  and  yet  the  distinction, 
although  not  easily  defined,  is  clear  enough.  In  a  sense, 
every  court  is  one  of  limited  jurisdiction,  both  of  the  sub- 
ject-matter and  of  the  person.  The  limitations  imposed 
upon  the  state  courts  are  usually  found  in  the  constitu- 
tions, and  the  codes  or  statutes,  and  confine  the  jurisdic- 
tion to  certain  classes  of  business,  and  within  certain  ter- 
ritorial limits.  The  extent  of  the  jurisdiction  of  difi'erent 
courts  exercising  their  powers  may  be  difi'erent,  and  that 
of  one  court  may  be  much  more  general  and  extensive 
than  that  of  another,  but  the  jurisdiction  of  all  of  the 
courts  of  this  kind,  although  statutory,  may  be  general. 

The  jurisdiction  of  the  United  States  courts  is  limited, 
but  it  is  not  for  that  reason  special.  The  great  difference 
between  the  state  courts  and  the  United  States  courts  is 
that  the  jurisdiction  of  the  former  may  exist  without,  but 
is  limited  by,  statute,  and  the  latter  is  dependent  entirely 
upon  express  provisions  of  law  for  their  jurisdiction,  except 
as  to  those  inherent  powers  that  belong  to  every  court  of 
general  jurisdiction,  and  need  not  be  given,  and  can  not 
be  taken  away,  by  statute. 

A  court  of  special,  as  distinguished  from  one  of  limited 
jurisdiction,  is  one  which  has  a  special  jurisdiction  for  a 
particular  purpose,  or  one  clothed  with  specific  powers  for 
the  performance  of  specific  duties  beyond  which  it  has  no 
authority,  and  these  specific  powers  to  be  exercised  in  a 
summary  way.^ 

act."  In  this  case  the  court  concludes  that  the  dividing  line  should  be 
between  courts  of  record  and  courts  not  of  record. 

1  Den  V.  Hammel,  3  Harrison  (N.  J.),  78,  79;  Kenney  v.  Greer,  13  111. 
432,  438 ;  54  Am.  Dec.  439. 

In  Kenney  v.  Greer,  supra,  the  court  said:  "The  term  limited  is  am- 
biguous, and  is  often  confounded  with  the  word  special.  Every  court 
is  limited  in  its  jurisdiction  by  the  constitution  and  laws.  This  court 
is  limited  to  appellate  jurisdiction  only  except  in  certain  specified  cases. 
The  true  distinction  is  between  such  courts  as  possess  a  general,  and  such 
as  have  only  a  special  jurisdiction,  for  a  particular  purpose,  or  clothed 


COURTS    OF    GENERAL    AND    OF    INFERIOR    JURISDICTION.       15 

with  special  powers  for  the  performance  of  specific  duties,  beyond 
which  they  have  no  manner  of  authority,  and  these  specific  powers  to 
be  exercised  in  a  summary  way,  eitlier  by  a  tribunal  already  existing 
for  general  purposes,  or  else  by  persons  appointed  for  the  special 
purpose." 

In  Den  v.  Hammel,  sxtpra,  it  was  said:  "  I  apprehend  the  term  'lim- 
ited jurisdiction,'  to  be  be  somewhat  ambiguous ;  and  that  the  books 
sometimes  use  it  without  due  precision.  Our  supreme  court  is  limited, 
by  acts  of  the  legislature,  so  likewise  is  the  court  of  common  pleas,  and 
the  newly  constituted  circuit  courts,  yet  each  of  them  exercises  a  gen- 
eral jurisdiction.  The  word  limlied  seems  to  be  used  sometimes  care- 
lessly instead  of  the  word  special ;  for  I  take  the  true  distinction  between 
courts  to  be,  such  as  possess  a  general,  and  such  as  have  only  a  special 
jurisdiction,  for  a  particular  purpose,  or  clothed  with  special  powers  for 
the  performance  of  specific  duties,  beyond  which  they  have  no  manner 
of  authority ;  and  these  special  powers  to  be  exercised  in  a  summary 
way,  either  by  a  tribunal  already  existing  for  general  purposes,  or  else 
by  persons  appointed  or  to  be  appointed  in  some  definite  form.  Such 
tribunals  with  special  powers  for  adjudicating  in  particular  cases,  under 
the  various  names  of  commissioners,  surveyors,  appraisers,  committees, 
directors,  overseers,  and  the  like,  abound  in  our  statute  book,  little  or 
in  nowise  relating  to  the  general  administration  of  justice,  whose  modes 
of  proceeding  are  prescribed  in  the  statutes  by  which  they  are  erected  ; 
and  unless  their  proceedings,  on  the  face  of  them,  show  a  compliance 
with  the  directions  required  by  the  statute  under  which  they  act,  it 
never  could  be  known  whether  they,  acted  within  their  jurisdiction,  or 
exceeded  it.  And  each  case  cited  in  support  of  the  plaintiff's  position 
was  that  of  a  tribunal  empowered  for  a  special  purpose  ;  and  that  alone ; 
as  to  liberate  from  confinement  certain  prisoners,  to  make  an  inquest 
concerning  certain  water,  or  to  inquire  respecting  the  value  of  certain 
land,  and  there  terminated  their  functions." 


16  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 


CHAPTER  II. 

GENERAL  PRINCIPLES  AFFECTING  JURISDICTION. 

8.  Jurisdiction  defined. 

9.  Diflerent  kinds  of  jurisdiction. 

10.  How  jurisdiction  conferred  and  regulated, 

11.  How  jurisdiction  obtained. 

12.  Jurisdiction  of  the  subject-matter. 

13.  Jurisdiction  of  the  person. 

14.  Jurisdiction  in  rem. 

15.  Territorial  jurisdiction. 
1(5.  Jurisdiction  as  to  amount. 

17.  Exclusive  and  concurrent  jurisdiction. 
IS.  Assistant  jurisdiction. 

19.  Terms  of  court  as  affecting  jurisdiction. 

20.  Special  and  inferior  jurisdiction  ;  how  obtained  and  exercised. 

21.  Original  and  appellate  jurisdiction. 

22.  When  and  how  question  of  jurisdiction  may  be  raised. 

23.  How  jurisdiction  proved  and  disproved. 

2-1.  How  jurisdiction  may  be  lost,  taken  away,  or  suspended. 

25.  Presumptions  in  favor  of  jurisdiction. 

26.  Effect  of  want  of  jurisdiction. 

27.  Inherent  powers  of  courts. 

28.  Powers  of  illegal  and  de  facto  courts. 

29.  Constitutional  limitations  of  jurisdiction. 

30.  Jurisdiction  in  summary  proceedings. 

31.  Control  of  attorneys. 

8.  Jurisdiction  defined. — Jurisdiction  has  been  defined 
to  be  the  power  to  hear  and  determine  a  cause. 

"  The  power  to  hear  and  determine  a  cause  is  jurisdic- 
tion. It  is  coram  judice  whenever  a  case  is  presented 
which  brings  this  power  into  action.  If  the  petitioner 
states  sucli  a  case  in  his  petition,  that  on  a  demurrer  the 
court  would  render  judgment  in  his  favor,  it  is  an  un- 
doubted case  of  jurisdiction."  ^ 

This  definition  is  generally  accepted  as  sufliciently  broad 

^  United  States  I'.  Arredondo,  6  Pet.  691,  709;  Smiley  t^.  Sampson,  I 
Neb.  70;  Elliott's  App.  Pro.,  sec.  12. 


JURISDICTION    DEFINED.  17 

and  comprehensive.^  But  care  must  be  taken  not  to  give 
the  term  ''power  to  determine"  too  broad  a  construction. 
Undoubtedly  where  the  court  has  jurisdiction  of  the  sub- 
ject-matter of  the  action,  and  of  the  parties,  it  has  juris- 
diction to  decide  the  case  rightly  or  wrongly.  If  the  judg-, 
raent  rendered  is  erroneous,  it  may  be  attacked  by  appeal 
or  writ  of  error,  but  it  is  not  for  that  reason  void  or  sub- 
ject to  collateral  attack.^  But  a  judgment  may  be  both 
erroneous  and  void.  The  court  may  have  jurisdiction  of 
the  subject-matter,  and  of  the  parties,  and  yet  the  partic- 
ular judgment  rendered  in  the  particular  case  maybe  void 
because  in  excess  of  the  jurisdiction  of  the  court.  The 
judgment  rendered  must  be  one  that  is  authorized  by  law 
in  the  class  of  cases  to  which  the  case  before  the  court  be- 
longs. Therefore,  where  the  validity  of  a  judgment  is  in 
question,  it  must  appear  that  the  court  had  power  to  ren- 
der that  particular  judgment  in  that  case,  without  refer, 
ence  to  the  rights  of  the  parties  before  it.^     It  does  not  fol- 

^  Freeman  ou  Judg.,  sec.  118;  1  Works'  Ind.  Prac.  and  PL,  sec.  4; 
Board,  etc.,  v.  Markle,  46  Ind.  96 ;  Lantz  v.  MaflFett,  102  Ind.  23,  28 ; 
26  N.  E.  Rep.  195 ;  Quarl  v.  Abbett,  102  Ind.  233,  239 ;  1  N.  E.  Rep.  476 ; 
Hickman  v.  O'Neal,  10  Cal.  292 ;  Ex  parte  Bennett,  44  Cal.  84. 

^  Post,  sec.  23. 

^  "The  doctrine  invoked  by  counsel,  that  where  a  court  has  once  ac- 
quired jurisdiction,  it  has  a  right  to  decide  every  question  which  arises 
in  the  cause,  and  its  judgment,  however  erroneous,  can  not  be  collater- 
ally assailed,  is  undoubtedly  correct  as  a  general  proposition,  but  like 
all  general  propositions,  is  subject  to  many  qualifications  in  its  applica- 
tion. All  courts,  even  the  highest,  are  more  or  less  limited  in  their  ju- 
risdiction. They  are  limited  to  particular  classes  of  actions,  such  as  civil 
or  criminal ;  or  to  particular  modes  of  administering  relief,  such  as  legal 
or  equitable ;  or  to  transactions  of  a  special  character,  such  as  arise  on 
navigable  waters,  or  relate  to  the  testamentary  disposition  of  estates  ;  or 
to  the  use  oi  particular  process  in  the  enforcement  of  their  judgments. 
Though  the  court  may  possess  jurisdiction  of  a  cause,  of  the  subject- 
matter,  and  of  the  parties,  it  is  still  limited  in  its  modes  of  procedure, 
and  in  the  extent  and  character  of  its  judgments.  It  must  act  judi- 
cially in  all  things,  and  can  not  then  transcend  the  power  conferred  by 
the  law.  If,  for  instance,  the  action  be  upon  a  money  demand,  the 
court,  notwithstanding  its  complete  jurisdiction  over  the  subject  and 
parties  has  no  power  to  pass  judgment  of  imprisonment  in  the  peniten- 
2 


18  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

low,  therefore,  necessarily,  that  because  the  court  has  the 
power  to  hear  and  determine  the  cause,  that  it  has  the 
power  to  render  the  judgment  brought  in  question.  To 
this  extent  the  definition  given  is  too  broad,  and  is  for  that 
reason  inaccurate.  If  any  particular  act  of  the  court  is  in 
question,  it  must  have  had  the  power,  not  only  to  hear  and 
determine  the  cause,  but  to  render  the  judgment,  or  do 
the  act,  brought  in  question.  That  the  court  ought  not  to 
have  rendered  such  a  judgment,  as  between  the  parties  to 
the  action,  does  not  affect  its  validity  if  the  judgment  is 
one  authorized  by  law  to  be  rendered  in  such  an  action. 
No  matter  how  erroneous  or  unjust  the  judgment  ren- 
dered may  be,  if  it  is  one  that  might,  under  any  condition 
of  the  evidence,  be  rendered  in  an  action  of  that  kind,  it 
is  not  invalid  or  subject  to  collateral  attack.  The  remedy 
is  by  appeal  or  writ  of  error.^ 

tiary  upon  the  defecdant.  If  the  action  be  for  a  libel  or  personal  tort, 
the  court  can  not  order  in  the  case  a  specific  performance  of  a  contract. 
If  the  action  be  for  the  possession  of  real  property,  the  court  is  power- 
less to  admit  in  the  case  the  probate  of  a  will.  Instances  of  this  kind 
show  that  the  general  doctrine  stated  by  counsel  ig  subject  to  many 
qualifications.  The  judgments  mentioned  given  in  the  cases  supposed, 
would  not  be  merely  erroneous,  they  would  be  absolutely  void  ;  because 
the  court  in  rendering  them  would  transcend  the  limits  of  its  authority 
in  those  cases.  .  .  .  So  a  departure  from  established  modes  of  pro- 
cedure will  often  render  the  judgment  void  ;  thus  the  sentence  of  a 
person  charged  with  felony,  upon  conviction  by  the  court,  without  the 
intervention  of  a  jury,  would  be  invalid  for  any  purpose.  The  decree 
of  a  court  of  equity  upon  oral  allegations,  without  written  pleadings, 
would  be  an  idle  act,  of  no  force  beyond  that  of  an  advisory  proceeding 
of  the  chancellor.  And  the  reason  is  that  the  courts  are  not  authorized 
to  exert  their  power  in  that  way.  The  doctrine  stated  by  counsel  is 
only  correct  when  the  court  proceeds,  after  acquiring  jurisdiction  of  the 
cause,  according  to  tlie  established  modes  governing  the  class  to  tvhich  the  case  be- 
longs, and  does  not  transcend,  in  the  extent  or  character  of  its  judgment,  the  law 
which  is  applicable  to  it.  The  statement  of  the  doctrine  by  Mr.  Justice 
Swayne,  in  the  case  of  Cornell  v.  Williams,  reported  in  the  20  Wallace, 
is  more  accurate.  '  The  jurisdiction,'  says  the  justice,  '  having  attached 
in  the  case,  every  thing  done  within  the  power  of  that  jurisdiction,  w^hen 
collaterally  questioned,  is  held  conclusive  of  the  rights  of  the  parties, 
unless  impeached  for  fraud.'  "  Windsor  v.  McVeigh,  93  U.  S.  282.  See 
also  Ex  parte  Lange,  18  Wall.  163  ;  Bigelow  v.  Forrest,  9  Id.  351  ;  In  re 
Pierce,  44  Wis.  411. 

'  Post,  sec.  23  ;  Freeman  on  Judg.,  sec.  135  ;  Chase  v.  Christiansen, 


I 


JURISDICTION    DEFINED.  19 

"  Jurisdiction  of  the  subject-matter  is  power  to  adjudge 
concerning  the  general  question  involved,  and  is  not  de- 
pendent upon  the  state  of  facts  which  may  appear  in  a 
particular  case,  arising,  or  which  is  claimed  to  have  arisen 
under  that  general  question."  ^ 

The  definitions  given  by  diiFerent  courts  vary  in  their 
language,  but  are  practically  the  same  as  the  one  given 
above.  "  To  have  jurisdiction  is  to  have  power  to  inquire 
into  the  fact,  to  apply  the  law,  and  to  declare  the  punish- 
ment, in  a  regular  course  of  judicial  proceeding.''  ^ 

"Jurisdiction  is  the  power  to  hear  and  determine  the 
subject-matter  in  controversy  between  parties  to  a  suit; 
to  adjudicate,  or  exercise  any  judicial  power  over  them ; 
the  question  is  whether,  on  the  case  before  a  court,  their 
action  is  judicial  or  extra-judicial,  with  or  without  the  au- 
thority of  law  to  render  judgment,  or  decree,  upon  the 
rights  of  the  litigant  parties.  If  the  law  confers  the 
power  to  render  a  judgment,  or  decree,  then  the  court  has 
jurisdiction;  what  shall  be  adjudged  or  decreed  between 
the  parties,  and  with  which  is  the  right  of  the  case,  is  ju- 
dicial action  by  hearing  and  determining  it."'^ 

This  last  definition  would  be  accurate  enough,  in  most 
cases,  but  it  may  mislead.  Undoubtedly  the  statement 
that,  under  the  circumstances  enumerated,  the  court  would 
have  jurisdiction  of  the  action,  and  would  have  power  and 
authority  to  render  any  judgment  authorized  by  law  in 
that  class  of  cases,  is  correct ;  but  there  may  still  be  a  want 
of  jurisdiction  to  render  a  particular  kind  of  judgment, 
because  such  judgment  is  not  authorized  by  law  in  such 
a  case  as  the  one  before  the  court. 

"  The  officer  is  judge  in  the  cases  in  which  the  law  has 
empowered  him  to  act,  and  in  respect  to  persons  lawfully 
brought  before  him  ;  but  he  is  not  judge  when  he  assumes 
to  decide  cases  of  a  class  which  the  law  withholds  from  his 
cognizance,  or  cases  between  persons  who  are  not  either 

41  Cal.  253 ;  Sheldon  v.  Newton,  :]  Ohio  St.  499 ;  Hunt  r.  Hunt.  72  X.  Y. 
224;  28  Am.  Rep.  129. 

>  Hunt  V.  Hunt,  72  N.  Y.  229;  28  Am.  Rep.  129. 

^  Hopkins  r.  Commonwealth,  44  Mass.  462. 

'  State  of  Rhode  Island  v.  State  of  Massachusetts,  12  Pet.  718;  People 
V.  Sturtevant,  9  N.  Y.  266;  ;39  Am.  Dec.  536. 


20  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

actually  or  constructively  before  him  for  the  purpose. 
Neither  is  he  exercising  the  judicial  function  when,  being 
empowered  to  enter  one  judgment,  or  make  one  order,  he  enters  or 
makes  one  wholly  different  in  nature.  When  he  does  this  he 
steps  over  the  boundary  of  his  judicial  authority,  and  is 
as  much  out  of  the  protection  of  the  law,  in  respect  to  the 
particular  act,  as  if  he  held  no  office  at  all.  This  is  the  gen- 
eral rule.  Jurisdiction  in  a  judge  may  be  defined  as  the  au- 
thority of  law  to  act  officially  in  the  matter  then  in  hand."  ^ 

"  Jurisdiction  in  courts  is  the  power  and  authority  to 
declare  the  law.  The  very  word,  in  its  origin,  imports  as 
much ;  it  is  derived  from  juris  and  dice — I  speak  by  the 
law.  And  that  sentence  ought  to  be  inscribed  in  living 
light  on  every  tribunal  of  criminal  power.  It  is  the  right  ot 
administering  justice  through  the  laws,  by  the  means  which 
the  law  has  provided  for  that  purpose.  But  here  the  mode 
and  the  manner  of  administering  the  justice  of  the  country 
was  not  provided  or  prescribed  by  the  law,  and  is  directly 
prohibited  by  it.     There  was,  therefore,  no  jurisdiction." - 

"Jurisdiction  may  be  defined  to  be  the  right  to  adjudi- 
cate concerning  the  subject-matter  in  the  given  case.  To 
constitute  this  there  are  three  essentials :  First,  the  court 
must  have  cognizance  of  the  class  of  cases  to  which  the 
one  to  be  adjudged  belongs.  Second,  the  proper  parties 
must  be  present.  And,  third,  the  point  decided  must  be  in 
substance  and  effect  within  the  issue.^'  ^ 

Here  is  an  element  in  the  definition  of  jurisdiction  not 
contained,  it  is  believed,  in  the  definitions  usually  given, 
and  certain!}^  the  correctness  of  this  decision,  so  far  as  it 
may  be  regarded  as  laying  down  a  general  rule,  must  be 
open  to  serious  question.  In  a  case  in  which  a  judg- 
ment is  taken  by  default,  no  doubt  it  would  be  void, 
but  not  where  the  defendant  appears  and  defends  the 
action.''  It  would  be  a  most  radical  departure  from  well 
settled  principles  to  hold  that  in  every  instance  where 
the  judgment  or   decree   of    a   court   is   outside    of    the 

'  Cooley  on  Torts,  417;  Jones  v.  Brown,  54  la.  79. 

'  Mills  V.  Commonwealth,  13  Pa.  St.  630. 

3  Munday  v.  Vail,  .34  N.  J.  Law,  422. 

*  But  see  on  this  point  Blondeau  r.  Snyder,  31  Pac.  Rep.  591. 


JURISDICTION    DEFINED.  21 

issues  it  is  void  for  want  of  jurisdiction  in  the  court  to 
render  it.  A  want  of  jurisdiction  may  appear  from  the 
faihire  of  the  declaration  or  complaint  to  allege  such  facts 
as  will  set  the  jurisdiction  of  the  court  in  motion.^  But 
this  is  not  because  no  issue  is  presented,  but  because  juris-, 
diction  of  the  subject-matter  does  not  appear.^ 

It  may  be,  and  no  doubt  is  true  as  said  in  this  case,  that 
a  decree  of  divorce  rendered  between  two  of  the  parties  in 
an  ordinary  foreclosure  case  would  be  invalid,  but  it  would 
not  be  void  because  not  within  the  issues,  but  because  no 
such  decree  could  be  rendered  in  a  foreclosure  suit.  Such 
a  case  would  fall  clearly  within  the  rule  laid  down  above 
that  a  judgment  not  authorized  by  law  in  the  class  of 
cases,  of  which  the  case  before  the  court  is  one,  is  void 
for  want  of  jurisdiction.  And  even  this  rule  must 
be  difficult  of  application  under  the  code  system  of  ad- 
ministering justice.     Under  the  extreme  views  sometimes 

1  Spoors  V.  Coen,  44  Ohio  St.  497  ;   9  N.  E.  Rep.  132. 

^  In  Munday  v.  Vail,  supra,  the  court,  after  giving  the  above  defini- 
tion, say  :  "  That  a  court  can  not  go  out  of  its  appointed  sphere,  and 
that  its  action  is  void  with  respect  to  persons  who  are  strangers  to  its 
proceedings,  are  propositions  established  by  a  multitude  of  authorities. 
A  defect  in  a  judgment  arising  from  the  fact  that  the  matter  decided  was 
not  embraced  within  the  issue,  has  not,  it  would  seem,  received  much 
judicial  consideration.  And  yet  I  can  not  doubt  that,  upon  general 
principles,  such  a  defect  must  avoid  a  judgment.  It  is  impossible  to 
concede  that  because  A  and  B  are  parties  to  a  suit,  that  a  court  can  de- 
cide any  matter  in  which  they  are  interested,  whether  such  matter  be 
involved  in  the  pending  litigation  or  not.  Persons  by  becoming  suitors 
do  not  place  themselves,  for  all  purposes,  under  the  control  of  the  court, 
and  it  is  only  over  these  particular  interests  which  they  choose  to  draw 
in  question  that  a  power  of  judicial  decision  arises.  If  in  an  ordinary 
foreclosure  case,  a  man  and  his  wife  being  parties,  the  court  of  chancery 
should  decree  a  divorce  between  them,  it  would  require  no  argument  to 
convince  every  one  that  such  decree,  so  far  as  it  attempted  to  affect  the 
matrimonial  relation,  was  void ;  and  yet  the  only  infirmity  in  such  a 
decree  would  be  found,  upon  analysis,  to  arise  from  the  circumstance 
that  the  point  decided  was  not  within  the  substance  of  the  pending 
litigation.  In  such  a  case  the  court  would  have  acted  within  the  field 
of  its  authority,  and  the  proper  parties  would  have  been  present,  the 
single  but  fatal  flaw  having  been  the  absence  from  the  record  of  any 
issue  on  the  point  determined.  The  invalidity  of  such  a  decree  does 
not  proceed  from  any  mere  arbitrary  rule,  but  it  rests  entirely  on  the 
ground  of  common  justice."  See  to  the  same  effect,  Reynolds  v.  Stock- 
ton, 43  N.  J.  Eq.  211 ;  10  Atl.  Rep.  385;  Reynolds  v.  Stockton,  140  U.  S. 
250;  11  Sup.  Ct.  Rep.  773. 


22  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

taken  that  the  distinction  between  diflferent  kinds  of  ac- 
tions have  been  aboHshed  for  all  purposes,  it  could  not  be 
said  that  a  judgment  in  a  given  case  must  be  held  invalid 
when  no  such  judgment  could  lawfully  be  rendered  in  the 
class  of  cases  to  which  it  belongs.  But  the  divisions  of 
actions  at  law  and  in  equity  can  not  be  thus  brushed  aside. 
So  far  as  the  matter  of  form  is  concerned  all  common  law 
and  equity  actions  and  suits  have  been  consolidated  into 
one  denominated  a  "  civil  action,"  but  the  distinction  be- 
tween these  several  kinds  of  actions,  in  respect  to  matters 
of  substance,  still  remains  and  must  have  its  effect  in  this 
as  in  many  other  matters  affecting  the  substance  and 
merits  of  a  controversy,  and  not  the  mere  matter  of  form 
or  procedure.^ 

A  court  may  have  jurisdiction  to  hear  and  determine  a 
cause,  and  yet,  as  we  have  seen,  some  particular  act  done 
may  be  outside  of  or  in  excess  of  its  jurisdiction.  Every 
movement  of  the  court,  within  its  power  to  act,  is  an  ex- 
ercise of  its  jurisdiction.^  And  "  the  authority  to  hear 
and  determine  a  cause  is  jurisdiction  to  try  and  decide  all 
of  the  questions  involved  in  the  controversy.''  ^ 

''  Jurisdiction  has  often  been  said  to  be  '  the  power  to 
hear  and  determine.'  It  is,  in  truth,  the  power  to  do  both 
or  either,  to  hear  without  determining,  or  to  determine 
without  hearing."  * 

Where  jurisdiction  of  the  person  of  a  defendant  is  ac- 
quired by  publication,  and  the  declaration  or  complaint  is 
thereafter  amended  in  such  way  as  to  allege  a  different 
cause  of  action  and  without  any  new  notice  being  given  a 
judgment  is  taken  by  default,  the  judgment  is  void.^ 

'  Vail  V.  J  ones,  31  Ind.  467,  473. 

'  Hopkins  v.  The  Commonwealth,  3  Mete.  462 ;  State  of  Rhode  Island 
V.  Massachusetts,  12  Pet.  718. 

3  Quarl  V.  Abbott,  102  Ind.  239 ;  1  N.  B.  Rep.  476. 

*  Ex  parte  Bennett,  44  Cal.  88.  A  very  full  collection  of  the  authori- 
ties on  this  subject  will  be  found  in  12  Am.  &  Eng.  Enc.  of  Law,  244  et 
seq.  The  question  as  to  what  is  necessary  to  give  a  court  jurisdiction  of 
the  subject  and  of  the  parties  to  an  action  will  be  considered  in  another 
place.     (Post,  sees.  12,  13.) 

*  Stuart  r.  Anderson,  70  Tex.  oSS;  8  S.  W.  Rep.  295,  300. 


DIFFERENT    KINDS    OF    JURISDICTION.  23 

So  the  judgment  of  a  court  upon  a  subject  of  litigation 
within  its  jurisdiction,  but  not  brought  before  it  by  any 
statement  or  claim  of  the  parties,  is  null  and  void,  and 
may  be  collaterally  impeached.^ 

9.  Different  kinds  of  jurisdiction. — The  most  impor- 
tant division  of  jurisdiction  is  that  which  separates  the 
<;omraon  law  and  equitable  jurisdiction  of  courts.  Both 
of  these  are  fully  considered  in  another  place.^ 

Under  the  system  of  practice  and  pleadings  which  kept 
these  different  kinds  of  jurisdiction  separate  and  distinct,, 
not  only  with  respect  to  the  courts  in  which  they  were 
administered,  but  with  respect,  also,  to  the  mode  of  pro- 
cedure and  the  remedies  to  be  administered,  this  classifica- 
tion was  much  more  important,  as  affecting  the  law  of 
jurisdiction,  than  it  is  at  the  present  day.  But  under 
the  codes,  the  common  law  and  equity  principles  and 
procedure  necessarily  influence  not  only  the  remedies 
to  be  administered  but  the  means  by  which  the  relief 
may  be  obtained.  There  is  an  inherent  and  essential 
•difference  between  common  law  and  equity  rights  and 
remedies  that  permeates  every  branch  of  the  law  under 
the  codes  as  well  as  under  the  old  systems  of  pro- 
■cedure.  It  is  well,  therefore,  for  the  student  and  the 
lawyer  to  study  carefully  the  jurisdiction  of  the  courts 
fis  it  existed  in  the  common  law  and  equity  courts  in 
England  and  in  this  country  before  the  enactment  of 
the  codes.  This  is  necessary  not  only  because  the  practice 
and  pleadings  under  the  codes  can  not  be  mastered  with- 
out such  knowledge,  but  for  the  further  reason  that  in  the 
federal  courts,  and  in  the  courts  of  some  of  the  states, 
these  separate  jurisdictions  are  still  maintained  in  prac- 
tice. 

The  jurisdiction  exercised  by  the  common  law  and 
equity  courts  differs  mainly  in  the  remedies  that  may  be 
administered   by  each.     In    a    court    of  law,  the    injured 

1  Spoors  V.  Coen,  44  Ohio  St.  497  ;  9  X.  E.  Rep.  1:32.     Pod,  sec.  11. 
'  Post,  sees.  65   et  seq. 


24  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

party  is  confined  to  the  recovery  of  money  or  specific  real 
or  personal  property,  whether  his  cause  of  action  arises 
ex  contractu  or  ex  delicto,  and  no  cause  of  action  arises  until 
the  wrong  complained  of  has  been  committed.^ 

The  jurisdiction  of  a  court  of  equity  is  in  great  measure 
preventive  in  its  nature.  It  not  only  has  jurisdiction  to 
prevent  a  party  from  doing  a  wrongful  act  to  the  injury  of 
another,  but  it  may  compel  him  to  do  what  is  right  instead 
of  giving  the  other  party  concerned  relief  in  damages  for 
his  failure  to  do  so.  The  jurisdiction  of  the  common  law 
courts  were  exercised  in  certain  well  known  common  law 
actions.  These  fixed  actions  measured  and  prescribed  the 
limits  of  their  jurisdiction.  It  was  mainly  the  inadequacy 
of  the  remedies  thus  administered  that  brought  courts  of 
equity  into  existence  and  gave  rise  to  the  vast  and  impor- 
tant jurisdiction  these  courts  exercise  at  the  present  day. 
The  jurisdiction  of  the  equity  courts  can  not  be  ascertained 
and  stated  with  as  much  accuracy  and  precision  as  that  of 
the  common  law  courts,  because  it  can  not  be  done  by  a 
mere  reference  to  the  particular  kinds  of  actions,  main- 
tainable therein,  by  name.  But  some  of  the  principal 
cases  or  suits  of  exclusive  equitable  jurisdiction  may  be 
mentioned,  viz.:  To  compel  the  rescission,  cancellation,  or 
delivery  up  of  agreements,  securities,  or  deeds ;  to  reform 
written  instruments  and  to  correct  mistakes  therein  ;  for 
specific  performance  of  contracts,  awards,  and  the  like; 
to  rescind  contracts;  to  set  aside  conveyances  made  to  de- 
fraud, hinder,  or  delay  creditors;  to  probate  or  contest 
wills;  for  injunctive  relief;  to  foreclose  or  redeem  mort- 
gages; interpleader;  to  enforce  vendors' or  other  liens  on 
lands ;  to  establish  or  enforce  trusts  ;  seeking  the  construc- 
tion of  wills  and  the  enforcement  of  trusts  under  them ; 
actions  for  divorce  or  to  nullify  or  affirm  marriages ;  to 
compel  an  election  between  inconsistent  rights  or  claims; 
to  marshal  assets  or  securities;  for  dissohition  of  partner- 
ship, and  to  settle  accounts  of  same ;  to  compel  payment 
of  lost  bills  of  exchange  or  promissory  notes,  negotiable 

'  Adams'  Eq.  Int.,  p.  xxxiv. 


DIFFERENT    KINDS    OF    JURISDICTION.  25 

by  delivery  merely ;  to  quiet  title  to  real  estate ;  to  review 
judgments  or  decrees,  subrogation,  and  substitution.^  To 
these  may  be  added  what  is  sometimes  termed  the  assist- 
ant jurisdiction  of  courts  of  equity,  which  is  exercised  by 
bill  of  discovery,  by  the  examination  of  witnesses  de  hen€ 
esse,  or  out  of  the  jurisdiction  of  the  court,  and  by  the 
perpetuation  of  testimony.^ 

In  chancery,  jurisdiction  is  divided  into  orc^mari/,  wherein 
the  common  law  is  observed,  and  extraordinary,  that  of 
equity  and  good  conscience,  and  the  court  of  chancery 
into  two  tribunals,  one  with  ordinary  and  the  other  with 
extraordinary  jurisdiction.^ 

These  two  jurisdictions  were  originally  administered  in 
England  in  separate  and  distinct  courts.* 

This  gave  rise  to  conflicts  of  jurisdiction  and  complica- 
tions that  have,  to  a  great  extent,  been  modified  and 
avoided  by  vesting  both  legal  and  equitable  jurisdiction  in 
the  same  courts,  and  by  making  the  procedure  the  same 
whether  the  cause  of  action  be  legal  or  equitable.  This 
has  been  done  in  England  by  the  adoption  of  the  judicature 
acts,  which  vest  the  whole  jurisdiction  in  one  court.^ 

It  is  true,  as  we  have  shown  elsewhere,^  that  the  legal 
and  equitable  jurisdiction  of  this  one  court  is  kept  sepa- 
rated by  the  separation  of  the  court  into  divisions  cor- 
responding to  the  old  common  law  and  equity  courts  with 
jurisdiction  in  such  divisions  similar  to  the  former  courts 
of  the  same  name,  but  the  court  is  still  but  one  court,  with 

'  1  Work's  Ind.  Prac.  &  PL,  sec.  827.  In  a  note  to  Cooley's  Black- 
stone,  Book  3,  p.  426,  the  general  heads  of  equity  jurisdiction  are  said  to 
include:  fraud,  accident,  mistake,  account,  infants,  lunatics,  imbeciles, 
etc.,  married  women,  specific  performance,  foreclosure  of  mortgage, 
dower,  partition,  interpleader,  trusts,  bills  of  peace,  bills  quia  timet,  and 
injunction.  See  also  the  introduction  to  Adams'  Equity  for  a  clear  and 
precise  statement  of  the  jurisdiction  of  courts  of  equity. 

'  Post,  sec.  18;  Bouv.  Law  Die,  title.  Jurisdiction. 

'  Anderson's  Die.  of  Law,  164,  581.  *  18  Am.  Law  Rev.  575. 

*  Ante,  sec.  3 ;  18  Am.  Law  Rev.  575,  582  ;  25  Am.  Law  Rev.  1 ;  Wil- 
son's Jud.  Acts,  2,  sec.  3. 

*  Ante,  sec.  3. 


26  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

jurisdiction  over  all  classes  of  cases,  and  with  power  to 
administer  all  of  the  remedies  that  might  have  been  ad- 
ministered by  the  several  courts  consolidated  into  it,  and 
the  only  effect  of  bringing  an  action  in  the  wrong  division 
of  the  court  is  that  it  may  be  ordered  transferred  to  the 
proper  division.^ 

In  the  several  states  in  this  country  which  have  adopted 
codes  it  is  provided,  in  express  terms,  that  the  distinction 
between  actions  at  law  and  suits  in  equity  are  abolished, 
and  a  single  action,  denominated  a  civil  action,  is  provided 
for  in  their  stead.^  And  the  several  actions  known  to  the 
common  law  and  equity  practice  being  thus  consolidated 
into  one,  jurisdiction  over  all  of  them  is  vested  in  one  and 

'  In  an  article  in  the  American  Law  Review,  by  Mr.  Tempany,  it  is 
said:  "  On  looking  at  the  jurisdiction  of  the  several  divisions,  it  may 
ver}^  possibly  be  said  that  as  each  division  possesses  a  peculiar  and  ap- 
parently exclusive  jurisdiction,  the  alterations  endeavored  to  be  effected 
by  the  judicature  acts  can  scarcely  be  looked  upon  in  the  light  of  con- 
solidation. But  it  must  be  borne  in  mind  that  the  consolidation  sought 
to  be  effected  is  rather  the  fusion  of  law  and  equity  rather  than  of 
the  courts  of  common  law  and  chancery,  and  though  the  latter  courts 
may  be  said  still  virtually  to  exist  in  the  names  of  the  '  chancery  division  ' 
and  the  '  queen's  bench  division,'  it  must  be  observed  that  such  a  thing 
as  a  '  court  of  equity '  no  longer  continues,  the  queen's  bench  division 
being  now  just  as  much  a  court  of  equity  as  the  chancery  division 
itself ;  and  it  is  in  this  respect  that  the  greatest  fusion  has  taken  place. 
Now  a  plaintiff  is  left  entirely  free  to  choose  the  division  of  the  court  in 
which  he  will  bring  his  action,  provided  that  it  does  not  fall  within  the 
category  of  those  assigned  to  a  particular  division;  and  even  though,  by 
mistake,  he  assigns  his  action  to  a  wrong  division,  the  worst  that  can 
befall  him  is  to  have  it  transferred,  in  the  stage  at  which  it  is  found, 
to  the  division  in  which  by  right  it  should  have  been  brought,  and  it  is 
quite  within  the  discretion  of  a  judge  not  even  to  transfer  it,  but  to 
allow  the  action  to  proceed  in  the  division  in  which  it  has  been  com- 
menced. Convenience  is  the  sole  object  of  assigning  special  business 
to  each  division,  and  exclusive  jurisdiction  in  that  business  is  not 
thereby  given  to  the  particular  division.  It  would  therefore  be  quite 
erroneous  to  say  that  the  power  to  decree  specific  performance,  parti- 
tion or  redemption,  or  foreclosure  of  mortgages,  was  exclusively  within 
the  jurisdiction  of  the  chancery  division,  for  all  the  other  divisions  have 
the  same  power  in  an  equal  degree.  Law  and  equity  are  now  concur- 
rently administered,  and  equity  prevails  in  all  cases  where  the  rules  of 
law  and  equity  conflict."     18  Am.  Law  Rev.  584. 

2  Pom.  Rem.,  sec.  28. 


DIFFERENT    KINDS    OF    JURISDICTION.  27 

the  same  court,  and  the  procedure  generally  is  the  same 
whether  the  action  would  formerly  have  been  one  at  law 
or  in  equity.^ 

Perhaps  the  most  material  distinction  maintained  in 
most  of  the  states  between  common  law  and  equity  actions - 
is  as  to  the  manner  in  which  each  shall  be  tried,  the 
right  of  trial  by  jury  being  continued  in  common  law  cases 
and  denied  in  those  formerly  cognizable  in  courts  of 
equity. 

In  many  cases  the  jurisdiction  of  the  law  and  equity 
courts  were  concurrent,  the  only  distinguishing  feature  be- 
ing the  remedy  to  be  administered.^ 

Besides,  the  provisions  of  the  codes  abolishing  the  dis- 
tinction between  legal  and  equitable  actions,  many  of  the  ac- 
tions that  were  formerly  cognizable  in  courts  of  equity  have 
ceased  to  be  distinctively  equitable  and  become  statutory. 
This  may  be  said  of  actions  for  partition,  for  divorce,  the 
settlement  and  protection  of  the  estates  of  infants,  lu- 
natics and  others,  which  are  governed  entirely  by  posi- 
tive statutory  provisions.  Being  provided  for  and  regu- 
lated entirely  by  statute,  and  administered  in  and  by 
courts  exercising  general  jurisdiction  of  all  actions  and 
special  proceedings  of  whatever  nature  under  the  same 
form  and  procedure,  except  as  the  same  are  varied  and 
controlled  by  statute,  they  are  no  longer  looked  upon  or 
treated  as  equitable  in  their  nature  for  any  purpose.  As 
to  such  equitable  remedies  as  injunction,  specific  perform- 
ance, and  the  like,  they  are  as  much  equitable  suits  now 
as  they  ever  were,  so  far  as  matter  of  substance  is  concerned, 
but  they  are  not  distinguishable,  in  the  code  states,  in 
matters  of  form,  or  as  respects  the  courts  by  which  they 
are  to  be  administered,  from  common-law  actions. 

The  equitable  jurisdiction  of  discovery,  the  perpetuation 
of  testimony  and  the  like,  once  so  important,  has  been  al- 
most entirely  superseded  by  simple  and  effectual  statutory 
provisions  for  the  taking  of  the  testimony  of  parties  and 
witnesses  in  advance  of  the  trial,  and   in  advance  of  the 

»  Pom.  Rem.,  sec.  28.  '  1  Work's  Ind.  Pr.  &  PL,  sec.  826. 


28  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

commencement  of  the  suit,  and  in  some  of  the  states,  for 
the  submission  of  interroE^atories  by  one  of  the  parties  to 
a  suit  to  be  answered  by  the  other  under  oath  to  be  used  as 
evidence  at  the  trial.  There  are  other  subordinate  di- 
visions of  jurisdiction  applicable  to  both  of  these  classes. 
They  are  original  and  appellate,  exclusive  and  concurrent, 
general  and  inferior  or  special,  of  the  subject-matter  and 
of  the  person,  assistant  and  consultative  and  territorial.^ 

It  is  usually  held  that  courts  of  record,  unless  it  is  other- 
wise provided  by  law,  have  common  law  jurisdiction.* 

"  The  term  common  law  jurisdiction  is  capable  of  no 
other  meaning  than  jurisdiction  to  try  and  decide  causes 
which  were  cognizable  by  the  courts  of  law,  under  what 
is  known  as  the  common  law  of  England.  Our  judical 
system  having  been  modeled  chiefly  after  that  of  England, 
we  have  adopted  the  nomenclature  which  prevailed  in  her 
courts."^ 

10.  How  JURISDICTION  CONFERRED  AND  REGULATED. — Juris- 
diction is  conferred  and  regulated  in  this  country  almost  ex- 
clusively by  the  constitution  of  the  United  States  and  acts  of 
congress,  in  case  of  the  federal  courts,  and  by  the  cousti- 

^  "Jurisdiction  is  original  when  it  is  conferred  on  the  court  in  the  first 
instance,  which  is  called  original  jurisdiction;  or  it  is  appellate,  which  is 
when  an  appeal  is  given  from  the  judgment  of  another  court.  Juris- 
diction is  also  civil  where  the  subject-matter  to  be  tried  is  not  of  a 
criminal  nature ;  or  criminal  where  the  court  is  to  punish  crimes. 
Some  courts  and  magistrates  have  both  civil  and  criminal  jurisdiction. 
Jurisdiction  is  also  concurrent,  exclusive,  or  assistant.  Concurrent  juris- 
diction is  that  which  may  be  entertained  by  several  courts.  It  is  a  rule 
that  in  cases  of  concurrent  jurisdiction  that  which  is  first  seized  of  the 
case  shall  try  it  to  the  exclusion  of  the  other.  Exclusive  jurisdiction  is 
that  which  has  alone  the  power  to  try  or  determine  the  suit,  action,  or 
matter  in  dispute.  Assistant  jurisdiction  is  that  which  is  afibrded  by  a 
court  of  chancery  in  aid  of  a  court  of  law ;  as,  for  example,  by  a  bill  of 
discovery,  by  the  examination  of  witnesses  de  bene  ess?,  or  out  of  the 
jurisdiction  of  the  court;  by  the  perpetuation  of  the  testimony  of  wit- 
nesses and  the  like."  Bouv.  Die,  title,  Jurisdiction  ;  12  Am.  &  Eng. 
Enc.  of  LaM',  251. 

» In  the  matter  of  Conner,  39  Cal.  98 ;  2  Am.  Rep.  427  ;  Ex  parte  Glad- 
hill,  8  Mete.  168.     As  to  what  are  courts  of  record,  see  ante  sees.  6,  7, 

» In  the  matter  of  Conner,  39  Cal.  100  ;  2  Am.  Rep.  427. 


HOW    JURISDICTION    CONFERRED    AND    REGULATED.  29 

tutious  and  statutes  of  the  several  states  in  case  of  the  state 
courts.  But  it  does  not  follow  from  this  that  the  com- 
mon law  and  equity  have  nothing  to  do  with  fixing  the 
jurisdiction  of  the  courts.  When  jurisdiction  is  conferred 
by  the  constitution,  or  by  statute,  upon  the  courts  of  su-' 
perior  jurisdiction,  it  is  generally  provided  that  such  courts 
shall  have  jurisdiction  in  all  cases  at  law  and  in  equity,  or 
in  one  or  the  other,  as  the  case  may  be,  without  attempt- 
ing to  enumerate,  specifically,  the  cases  over  which  juris- 
diction shall  extend.  So  with  reference  to  admiralty  and 
maritime  cases. 

Thus,  for  example,  the  constitution  of  the  United  States 
provides  that  "  the  judicial  power  shall  extend  to  all  cases 
in  law  and  equity,  arising  under  this  constitution,  the  laws 
of  the  United  States  and  treaties  made,  or  which  shall  be 
made,  under  their  authority;  to  all  cases  aifecting  ambas- 
sadors, other  public  ministers,  and  consuls ;  to  all  cases  of 
admiralty  and  maritime  jurisdiction,"  etc.  ^  And  courts 
of  general  jurisdiction  have  and  exercise  common  law 
jurisdiction."  The  grant  of  jurisdiction  must  proceed  from 
competent  authority.  It  can  not  be  conferred  by  an  un- 
constitutional act  of  the  law-making  power.^  IN^or  can 
jurisdiction  of  the  subject-matter  be  given  by  consent  of 
the  litigant  parties.*  Jurisdiction  of  the  state  courts  is 
derived  from  the  constitution  and  laws  of  the  states,  and 
can  not  be  conferred  by  congress  or  by  the  laws  of  another 
state.^ 

Jurisdiction  may  be  exercised  according  to  the  rules  of 
the  common  law,  or  by  special  direction,  or  informally.^ 
And  the  specific  manner  in  which  jurisdiction  shall  be  ex- 
ercised may  be  provided  by  statute,  and  if  so  it  can  be 
exercised  in  no  other  way.^ 

In  the  absence  of  some  statutory  provision  authorizing 
it,  none  but  judges,  or  other  judicial  officers,  can  exercise 

»  Const.  U.  S.,  Art.  Ill,  sec.  2.  »  Wells'  Jur.,  sec.  67. 

'  Freeman  on  Judg.,  sees.  119,  120.  *  Post,  sec.  12. 

*  Missouri  Riv.  Tel.  Co.  v.  First  Xat'l  Bank,  74  111.  217. 

*  Smiley  v.  Sampson,  1  Neb.  70.  '  Post,  sec.  20. 


30  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

judicial  functions,  even  with  the  consent  of  parties  inter- 
ested.^    But  some  such  statutory  provisions  exist.^ 

In  some  of  the  states  statutory  provisions  authorizing 
the  holding  of  courts  by  attorneys  have  been  held  to  be 
unconstitutional.^ 

11.  How  JURISDICTION  OBTAINED. — The  power  to  hear  and 
determine  a  cause  is  conferred  by  law,  as  we  have  seen.* 
But  something  is  necessary  to  put  this  power  in  motion, 
and  call  for  the  action  of  the  court.  This  can  not  be 
done,  with  respect  to  the  subject-matter,  by  the  mere  con- 
sent of  the  parties.^ 

Jurisdiction  of  the  subject-matter  is  obtained  by  the  fil- 
ing of  such  a  pleading  or  petition  as  will  bring  the  action 
within  the  authority  of  the  court.® 

It  is  not  necessary  that  the  pleading  shall  state-  a  cause 
of  action,  or  be  so  drawn  as  to  withstand  a  demurrer,  but 
it  must  be  suificient  to  show  that  the  subject-matter  of  the 
action  is  within  the  jurisdiction  of  the  court.^  By  this  is 
not  meant  that  it  must  be  alleged  in  terms  that  the  court 

^  Ante,  sec.  1  ;  Hoagland  v.  Creed,  81  111.  506;  Bishop  v.  Nelson,  83  111. 
601 ;  Meredeth  v.  The  People,  84  111.  479. 

*  Thus  in  Indiana  provision  is  made  for  the  selection  of  an  attorney  to 
hold  court.  Rev.  Stat.  Ind.  1881,  sec.  1364.  And  in  California,  to  try- 
cases  with  the  consent  of  parties.     Code  Civil  Pro.,  sec.  72. 

3  Van  81yke  v.  Trempealeau  County  F.  M.  F.  Ins.  Co.,  39  Wis.  390  ;  20 
Am.  Rep.  50. 

*  Ante,  sec.  10. 

^  Free,  on  Judg.,  sec.  120;  Mills  v.  Commonwealth,  13  Pa.  St.  629; 
Horton  v.  iSawyer,  59  Ind.  587  ;  Doctor  v.  Hartman,  74  Ind.  221 ;  post, 
sec.  12. 

®  "  The  power  to  hear  and  determine  a  cause  is  jurisdiction  ;  and  it  is 
coram  judice  whenever  a  case  is  presented  which  brings  this  power  into 
action.  But  before  this  power  can  be  affirmed  to  exist,  it  must  be  made 
to  appear  that  the  law  has  given  the  tribunal  capacity  to  entertain  the 
complaint  against  the  person  or  thing  sought  to  be  charged  or  affected ; 
that  such  complaint  has  actually  been  preferred,  and  that  such  person  or 
thing  has  been  properly  brought  before  the  tribunal  to  answer  the 
charge."  Sheldon  v.  Newton,  3  Ohio  St.  499 ;  Spoors  v.  Coen,  44  Ohio 
St.  502 ;  9  N.  E.  Rep.  132 ;  Munday  v.  Vail,  34  N.  J.  Law,  422 ;  Callen  v, 
Ellison,  13  Ohio  St.  446  ;  82  Am.  Dec.  448. 

'  Campbell  v.  West,  86  Cal.  200 ;  24  Pac.  Rep.  1000  ;  McKeever  v.  Bail 
71  Ind.  404. 


HOW    JUKISDICTION    OBTAINED.  31 

has  jurisdiction.  Usually  the  statement  of  facts  shows 
the  case  to  be  one  within  the  jurisdiction  of  the  court. 
And  it  must  be  remembered  that  if  a  court  is  one  of  gen- 
eral jurisdiction,  its  jurisdiction  over  the  subject-matter 
wall  be  presumed.  And  where  it  does  not  affirmatively 
appear  on  the  face  of  the  complaint  that  the  subject-matter 
is  not  within  the  jurisdiction  of  the  court,  it  must  be 
shown  by  answer.^  It  is  otherwise  if  the  court  is  one  of 
inferior  or  special  jurisdiction.^ 

It  is  the  pleading  on  the  part  of  the  plaintiff  that  deter- 
mines whether  the  court  has  jurisdiction  or  not,  and  not 
the  defense.^ 

Where  a  special  statutory  mode  of  acquiring  jurisdic- 
tion is  provided,  that  mode  must  be  followed  or  the  pro- 
ceedings will  be  void.* 

Sometimes  certain  jurisdictional  facts  must  appear  in 
order  to  give  the  court  jurisdiction,  as  in  case  of  the 
federal  courts,  whose  jurisdiction  depends  upon  the  place 
of  residence  of  the  parties  to  the  action.  In  such  cases, 
the  facts  necessary  to  give  the  court  jurisdiction  must  be 
alleged  in  the  pleading  of  the  party  bringing  the  action.* 

Jurisdiction  of  the  person  is  obtained  by  service  of  pro- 
cess, or  by  voluntary  appearance  of  the  party,  or  by  some 
other  means  authorized  by  law.® 

Jurisdiction  of  the  res  is  obtained  by  its  seizure  under 
process  of  the  court,^  or  by  acts  which  are  of  equivalent 
import,  and  which  stand  for  and  represent  the  dominion 
of  the  court  over  the  thing,  and  in  effect  subject  it  to  the 
control  of  the  court.^     But  in   order  to   make  such  juris- 

1  Post,  sec.  22 ;  Callen  v.  Ellison,  13  Ohio  St.  446 ;  82  Am.  Dec.  448. 
=  Post,  sees.  22,  2.3,  25.  '  Wells'  Jur.,  sec.  4. 

*  Post,  sees.  20,  25 ;  Clark  v.  Thompson,  47  111.  25;  95  Am.  Dec.  457. 

^  Foster's  Fed.  Prac,  sec.  66 ;  Denny  r.  Pironi,  141  U.  S.  121  ;  11  S.  Ct. 
Kep.  966;  Timmons  v.  Elyton  Land  Co.,  139  U.  S.  378;  11  S.  Ct.  Rep. 
585. 

®  Post,  sec.  13;  Freeman  on  Judg.,  sec.  119;  Callen  v.  Ellison,  13  Ohio 
St.  446 ;  82  Am.  Dec.  448. 

''  Post,  sec.  14;  Freeman  on  Judg.,  sec.  119;  Cooper  r.  Reynolds,  10 
Wal.  308. 

*  Cooper  V.  Reynolds,  10  Wal.  317. 


32  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

diction  effectual,  and  authorize  the  court  to  proceed  in  the 
action,  notice  to  parties  interested  in  the  property  must  be 
given  as  required  by  law.^ 

12.  Jurisdiction  of  the  subject-matter. — The  subject- 
matter  of  an  action  is  the  matter  in  controversy  between 
the  parties,  and  may  be  real  or  personal  property,  money, 
or  some  equitable  relief.  It  is  "the  cause,  the  object,  the 
thing  in  dispute."  ^ 

Actions  affecting  title  to  real  estate  are  local  in  their 
nature,  and  must  be  brought  in  the  court  having  jurisdic- 
tion over  the  territory  within  which  the  land  is  situate.* 

Courts  will  take  judicial  notice  of  the  boundaries  of  a 
county  and  of  the  location  of  lands  described  by  govern-, 
ment  subdivisions  as  by  township,  range,  and  section,  and 
the  legal  subdivisions  thereof;  and  if  the  description  by 
such  subdivisions  shows  the  land  to  be  within  the  county 
where  the  action  is  brought  this  is  sufficient  ;*  but  the 
pleading  should  allege  in  terms  that  the  land  is  situate  in 
the  county.  The  jurisdiction  of  the  court,  if  one  of  gen- 
eral jurisdiction,  will  be  presumed,  however,  and  unless  it 
affirmatively  appears  by  the  description  that  it  is  out  of 
the  territorial  jurisdiction  of  the  court  the  fact  must  be 
shown  by  answer. 

Jurisdiction  of  the  subject-matter  can  not  be-  given  or 
enlarged  by  consent  of  parties.^ 

It  is  held  that  "where  the  jurisdiction  of  the  court  as 
to  the  subject-matter  has  been  limited  by  the  constitution  or 
the  statute,  the  consent  of  parties  can  not  confer  jurisdic- 
tion.   But  when  the  limit  regards  certain  persons,  they  may, 

*  Post,  sec.  14. 

'  Bouv.  Law  Die,  title,  Subject-matter;  Callen  v.  Ellison,  13  Ohio  St. 
446;  82  Am.  Dec.  448. 
'  Campbell  v.  West,  86  Cal.  197  ;  24  Pac.  Rep.  1000. 

*  Campbell  v.  West,  86  Cal.  200 ;  24  Pac.  Rep.  1000 ;  Wilcox  v.  Moudy, 
82  Ind.  219. 

*  Ante,  sec.  11 ;  Freeman  on  Judg.,  sec.  120 ;  Doctor  v.  Hartman,  24 
Ind.  221 ;  Damp  v.  Town  of  Dane,  29  Wis.  419,  431 ;  Dicks  v.  Hatch,  10 
la.  380;  Fleischmau  r.  Walker,  91  111.  318;  Cooley's  Const.  Lim.,  5th 
ed.,  495;  Elliott's  App.  Pro.,  sec.  13. 


JURISDICTION    OF    THE    SUBJECT-MATTER.  33 

if  competent,  waive  their  privilege,  and  this  will  give  the 
court  jurisdiction."  ^ 

The  pleadings  necessary  to  show  and  call  for  the  exer- 
cise of  jurisdiction  by  a  court  .that  would,  if  proper  plead- 
ings were  filed,  have  jurisdiction  of  the  subject-matter,- 
may,  in  most  of  the  states,  be  waived  by  consent  of  the 
parties,  upon  the  presentation  to  the  court  of  an  agreed 
case,  which  takes  the  place  of  pleadings.  But  the  stat- 
utes regulating  this  proceeding  usually  require  a  verified 
showing  by  the  parties  that  the  controversy  between  them 
is  real,  and  the  proceeding  in  good  faith  to  determine  the 
rights  of  the  parties.  If  it  appears  that  the  purpose  of 
such  an  agreed  state  of  facts  is  to  obtain  a  decision  of  a 
question  not  really  in  controversy  between  the  parties,  the 
court  will  not  act.  The  required  affidavit  is  necessary  to 
give  the  court  jurisdiction.^  But  in  order  to  give  a  court 
jurisdiction  an  action  must  be  commenced.^  And  the 
proceeding  by  way  of  an  agreed  case  is  no  exception  to 
the  rule.  The  agreed  statement  of  facts  takes  the  place 
of  the  pleadings  and  process. 

Whether  an  action  for  the  specific  performance  of  a 
contract  to  convey  real  estate  is  an  action  operating  upon 
the  real  estate,  or  upon  the  person  of  the  defendant,  and 
whether  the  action  is  transitory  or  local  is  not  clearly  set- 
tled. Some  of  the  codes  provide  that  actions  "  for  the 
recovery  of  real  property,  or  of  an  estate  or  interest 
therein,  or  for  the  determination,  in  any  form,  of  such 
right  or  interest,"  shall  be  brought  in  the  county  in  which 
the  subject-matter  of  the  action,  or  some  part  thereof,  is 
situated.*  In  others  it  is  specifically  provided  that  the 
action  may  be  brought  in  the  county  where  the  defend- 
ants or  any  of  them  reside.^ 

^  Gray  v.  Hawes,  8  Cal.  568. 

^  1  Work's  Ind.  Prac.  &  PI.,  sec.  249;  Godfrey  v.  Wilson,  70  Ind.  58; 
Union  Coal  Co.  v.  City  of  La  Salle,  26  N.  E.  Rep.  506;  Town  of  Plain- 
field  r.  Village  of  Plainfield,  67  Wis.  525  ;  Myers  v.  Sawyer,  99  Ind.  237  ; 
Elliott's  A  pp.  Pro.,  sec.  223. 

3  Ex  parte  Cohen,  6  Cal.  320. 

*  Code  Civil  Pro.  Cal.,  sec.  392;  Rev.  Stat,  of  Ind.,  1881,  sec.  307. 

^  Rev.  Stat.  Ohio,  1886,  sec.  5024;  An.  Stat.  Neb.,  1881,  p.  245,  sec.  84. 
3 


34  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

Whether  the  action  is  one  so  far  affecting  the  title  to,  or 
an  estate  in,  lands,  or  for  the  determination  in  any  form 
of  any  right  or  interest  therein  as  to  require  the  same  to 
be  brought  in  the  county  where  the  land  is  situated,  is  one 
about  which  the  authorities  are  not  agreed.  But  the 
better  rule  seems  to  be  that  the  action  falls  within  the  last 
clause  of  the  codes  referred  to,  and  is  an  action  to  deter- 
mine an  interest  in  lands.^ 

It  is  held  by  the  Supreme  Court  of  the  United  States 
that  the  tribunals  of  one  state  may  compel  the  perform- 
ance of  contracts  to  convey  property  situate  in  another 
state.^     And  so  it  is  held  in  some  of  the  states.^ 

It  has  been  held  that  when  an  action  is  tried  and  judg- 
ment rendered  in  a  court  not  having  jurisdiction,  and  an 
appeal  is  taken  to  a  court  having  original  jurisdiction  of 
the  subject-matter  of  the  action,  and  the  parties  appear 
and  consent  to  a  trial  there,  the  judgment  of  the  latter 
court  will  be  binding.*  But  this  was  upon  the  ground 
that  the  court  where  the  cause  was  last  tried  had  jurisdic- 
tion of  the  subject-matter,  and  while  it  could  not  obtain 
jurisdiction  by  virtue  of  the  appeal  from  a  court  having 
no  jurisdiction,  the  parties  having  appeared  and  consented 
to  a  trial  in  that  court,  the  case  must  be  treated  as  if  it 
had  been  originally  commenced  in  that  court  and  the  par- 
ties had  voluntai'ily  appeared  in  the  action  and  gone  to 
trial.^  But  in  such  a  case  a  writ  issued  out  of  the  court 
in  which  the  case  was  commenced  can  not  be  amended,  on 
appeal  to  another  court  having  original  jurisdiction,  so  as 
to  make  it  a  writ  issuing  from  the  latter  court,  and  thus 
give  such  court  jurisdiction.* 

1  1  AVork's  Ind.  Pr.  &  PL,  sec.  180;  Parker  v.  McAllister,  14  Ind.  12; 
Vail  V.  Jones,  31  Ind.  467 ;  Franklin  v.  Dutton,  79  Cal.  605;  21  Pac.  Rep. 
964 ;  but  see  Coon  v.  Cook,  6  Ind.  268 ;  Dehart  v.  Dehart,  15  Ind.  167 ; 
Morgan  v.  Bell,  28  Pac.  Rep.  925. 

^  Massie  t).  Watts,  6  Cranch,  148;  Watkins  r.  Holman,  16  Pet.  25; 
Pennoyer  v.  Neff,  95  U.  S.  723 ;  Watts  v.  Waddle,  6  Pet.  389. 

^  Seixas  v.  King,  39  La.  Ann.  510;  2  So.  Rep.  416;  Burnley  v.  Steven- 
son, 24  Ohio  St.  478;  15  Am.  Rep.  621. 

*  Randolph  County  v.  Ralls,  IS  111.  29. 

=*  See  Harrington  r.  Heath,  15  Ohio  St.  483. 

«  Osgood  V.  Thurston,  23  Pick.  (Mass.)  110. 


JURISDICTION   OF  THE    SUBJECT-MATTER.  35 

Personal  actions  are  transitory,  and,  as  a  rule,  must  be 
brought  in  the  court  having  jurisdiction  over  the  territory 
in  which  the  defendant  resides.' 

There  are  many  statutory  exceptions  to  this  rule,  how- 
ever.    For  example,  it  is  sometimes  provided  that  foreign' 
corporations  may  be  sued  in  the  courts  of  the  plaintifl"'s 
residence.^ 

So  it  is  sometimes  provided  by  statute  that  actions  upon 
contract  may  be  brought  in  the  courts  of  the  place  where 
the  contract  was  entered  into.^  And,  as  a  rule,  in  a  case 
of  fraud,  trust,  or  contract,  the  jurisdiction  of  a  court  of 
equity  is  sustainable  wherever  the  person  is  found,  though 
the  decree  may  affect  lands  without  its  jurisdiction.* 

An  action  may  be  brought  in  a  state  where  both  the 
plaintiff  and  defendant  reside,  although  the  cause  of  ac- 
tion, as  in  case  of  a  tort,  arose  in  a  foreign  country.^ 

It  is  held  in  N'ew  York  that  the  courts  of  that  state 
may,  in  their  discretion,  entertain  jurisdiction  of  an  action 
for  personal  injuries  between  persons  actually  domiciled 
in  that  state  when  the  action  is  brought,  though  the  in- 
jury was  committed  in  a  foreign  state,  of  which  the  par- 
ties were  still  citizens;  but  that  the  courts  are  not  bound 
to  entertain  jurisdiction  in  such  cases.^ 

Statutory  provisions  modifying  the  general  rule  that 
personal  actions  must  be  brought  in  the  county  where  the 
defendants,  or  some  of  them,  reside  are  most  frequently 
directed  against  corporations,  and  particularly  foreign 
corporations,  though  they  are  not  confined  to  this  class 
of  cases.  They  are  usually  enacted  with  a  view  of  pre- 
venting hardships  resulting  to  injured  parties  from  the 
requirement  that  they  shall  follow  the  defendant  to  the 
place  of  his  residence  in  order  to  obtain  their  rights  through 

1  Williams  v.  Welton,  28  Ohio  St.  464. 

^  Flynn  v.  Central  R.  R.  of  New  Jersey,  15  N.  Y.  Sup.  328 ;  20  N.  Y. 
Civ.  Proc.  Rep.  179. 
'  Kenney  v.  Greer,  13  111.  436;  54  Am.  Dec.  439. 

*  Massie  v.  "Watts,  6  Cranch,  148. 

^  Tupper  V.  Morin,  12  N.  Y.  Sup.  310;  25  Abb.  New  Cases,  398. 

*  Burdick  v.  Freeman,  120  N.  Y.  420;  24  N.  E.  Rep.  949. 


36  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

the  courts.  These  statutes  are  so  various  that  it  would  be 
impossible  to  give,  in  a  work  of  this  kind,  even  a  general 
synopsis  of  the  legislation  on  this  subject. 

It  is  sometimes  provided  that  where  a  defendant  is  a 
non-resident  the  plaintiff,  being  a  resident,  may  choose 
his  forum  and  bring  the  action  in  any  county  in  the 
state.' 

In  divorce  cases  it  is  usually  provided  by  statute  that 
the  action  may  be  brought  where  either  the  husband  or 
wife  have  their  bona  fide  residence.^ 

If  the  court  in  which  the  action  is  brought  has  not  juris- 
diction of  the  subject-matter,  an  appellate  court  in  which 
the  case  must  be  tried  de  novo  is  also  without  jurisdiction, 
although  it  would  have  had  original  jurisdiction  of  the 
action.^ 

13.  Jurisdiction  of  the  person. — The  question  as  to  the 
place  where  personal  actions  shall  be  commenced  is  con- 
sidered elsewhere.*  This  section  relates  to  the  means, 
generally,  by  which  jurisdiction  of  the  person  may  be  ac- 
quired. There  is  a  most  material  difierence,  in  this  re- 
spect, between  jurisdiction  of  the  subject-matter  and  of 
the  person.  As  has  been  shown,  jurisdiction  of  the  sub- 
ject-matter can  not  be  conferred  upon  a  court  by  the  con- 
sent of  parties.^ 

It  is  otherwise  as  to  jurisdiction  of  the  person.  If  a  court 
has  jurisdiction  of  the  subject-matter,  a  party  may  volun- 
tarily submit  himself  to  such  jurisdiction,  or  may,  by  fail- 
ing to  object  thereto  at  the  proper  time,  waive  his  right  to 
contest  such  jurisdiction.^     And,  if  a  court  has  lost  juris- 

'  McCauley  v.  Murdock,  97  Ind.  229,  232. 

*  Cooley's  Const.  Lim.,  5th  ed.,  495. 

'  Pritchard  v.  Bartholomew,  45  Ind.  219 ;  Mays  v.  Dooley,  59  Ind.  287 ; 
Stringham  v.  Board  of  Supervisors,  24  Wis.  594.     Post,  sec.  21. 

*  Post,  sec.  15.  ^  Ante,  sec.  12. 

fi  Freeman  on  Judg.,  sec.  119;  12  Am.  &  Eng.  Enc.  of  Law,  299;  Au- 
rora Eire  Ins.  Co.  v.  Johnson,  46  Ind.  315,  321 ;  Montgomery  v.  Town  of 
Scott,  32  Wis.  252;  Damp  v.  Town  of  Dane,  29  Wis.  419,  431 ;  McCauley 
V.  Murdock,  97  Ind.  219,  232;  Kenney  v.  Greer,  13  111.  432,  435;  54  Am. 


JURISDICTION    OF    THE    PERSON.  37 

diction  of  the  person,  it  may  be  restored  in  the  same 
way.^ 

Consent  is  given  by  a  general  appearance,  in  person  or 
by  attorney,  entered  in  the  action,  or  by  some  act  equiva- 
lent thereto,  such  as  the  filing  of  a  pleading  in  the  case' 
or  some  similar  act  recognizing  the  authority  of  the  court 
to  proceed  in  the  action.^  But,  unless  it  is  expressly  pro- 
vided to  the  contrary,  as  it  is  in  some  of  the  states,  a 
special  appearance  may  be  entered  for  the  purpose  of  ques- 
tioning whether  the  court  has  acquired  jurisdiction,  by 
the  service  of  process,  as  required  by  law,  without  giving 
the  court  jurisdiction  to  proceed  further  than  to  determine 
whether  it  has  acquired  jurisdiction  or  not.^ 

The  appearance  to  be  special  must  be  on  jurisdictional 
grounds.  If  upon  any  other  ground  it  is  a  general  ap- 
pearance and  gives  the  court  jurisdiction.* 

In  Iowa  a  party  appearing  to  object  to  the  jurisdiction 
of  the  court  can  not  afterward  object  to  the  sufiiciency  of 
the  service  of  notice.^  So  under  a  statute  of  Texas  it  is 
held  that  if  the  citation  or  service  is  quashed  on  motion 
of  the  defendant,  he  shall  be  deemed  to  have  entered  his 
appearance  to  the  action.® 

Dec.  439;  Browu  r.  Webber,  6  Cush,  (Mass.)  560;  McCormick  v.  Penn. 
€ent.  etc.,  R.  R.,  49  N.  Y.  303.     Post,  sec.  22. 

1  12  Am.  &  Eng.  Enc.  of  Law,  299 ;  Taylor  r.  Atlantic  &  Pac.  R.  R.  Co., 
68  Mo.  397. 

^  Aurora  Fire  Ins.  Co.  v.  Johnson,  46  Ind.  315,  321 ;  Carpenter  r.  Shep- 
ardson,  43  Wis.  406,  412 ;  Damp  v.  Town  of  Dane,  29  Wis.  419,  431  ;  Smith 
V.  Curtis,  7  Cal.  584;  McCormick  v.  Penn.  Cent,  R.  R.  Co.,  49  N.  Y.  303; 
Wasson  v.  Cone,  86  111.  46;  Fee  v.  Big  Sand  Iron  Co.,  13  Ohio  St.  563; 
Slauter  v.  Hallowell,  90  Ind.  286;  Roy  v.  Union  Mercantile  Co.,  26  Pac. 
Rep.  996. 

'  Branner  v.  Chapman,  11  Kan.  118;  New  Albany,  etc.,  R.  R.  Co.  v. 
Combs,  13  Ind.  490 ;  Linden  Gravel  M.  Co.  v.  Sheplar,  53  Cal.  245 ;  South- 
ern Pac.  R.  R.  Co.  V.  Superior  Court  Kern  Co.,  59  Cal.  471 ;  Green  v. 
Green,  42  Kan.  654 ;  22  Pac.  Rep.  730 ;  Nelson  v.  Campbell,  1  Wash.  St. 
261 ;  24  Pac.  Rep.  539 ;  Murphy  v.  Ames,  1  Mon.  276.     Post,  sec.  22. 

^  Green  r.  Green,  42  Kan.  654;  22  Pac.  Rep.  730;  Burdette  r.  Corgan, 
26  Kan.  102;  Grantier  r.  Rosecrance,  27  Wis.  491:  Roy  v.  L^nion  Mer- 
cantile Co.,  26  Pac.  Rep.  996  ;  Alderson  v.  White,  32  Wis.  308. 

*  Church  V.  Grossman,  49  la.  444. 

«  Rabb  V.  Rogers,  67  Tex.  335;  3  S.  W.  Rep.  303  ;  Central  &  M.  R.  Co. 
T.  Morris,  68  Tex.  49;  3  S.  W.  Rep.  457. 


88  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

In  England  a  special  mode  of  appearance  by  delivering 
to  the  proper  officer  a  memorandum  in  writing  is  provided 
for.'  An  appearance  may  be  entered  by  attorney.  Bat 
the  effect  of  an  appearance  by  an  unauthorized  attorney 
depends  upon  the  place  of  residence  of  the  party,  and 
whether  the  court  is  one  of  general  or  inferior  or  special 
jurisdiction.  The  weight  of  authority  is  to  the  etfect  that 
the  want  of  authority  of  an  attorney  to  appear  can  not  be 
shown  in  a  collateral  proceeding  to  defeat  a  judgment 
founded  on  such  appearance  except  upon  the  ground  of 
fraud.*  Nor  can  such  authority  be  questioned,  after  judg- 
ment, in  a  direct  proceeding,  where  the  judgment  is  one 
of  a  court  of  superior  jurisdiction,  and  the  party  is  a  resi- 
dent of  the  state,  except  upon  a  showing  that  he  has  a 
good  defense,  and  then,  in  order  to  obtain  relief,  he  must 
come  in  and  submit  himself  to  the  jurisdiction,  and  all 
proceedings  in  his  favor  are  subject  to  the  intervening 
rights  of  third  parties.  In  this  class  of  cases  the  party  is 
simply  permitted  to  come  in  and  have  the  case  opened  up 
and  to  make  his  defense.  But  where  the  defendant  is  a 
non-resident  of  the  state  in  which  the  judgment  is  ren- 
dered, and  has  had  no  notice  of  the  pendency  of  the  ac- 
tion, and  has  not  been  within  the  jurisdiction  of  the  court 
during  the  pendency  of  the  action,  he  is  entitled  to  have 
the  judgment  set  aside,  absolutely,  upon  a  showing  that 
the  appearance  of  the  attorney  was  unauthorized.^ 

^  Wilson's  Jud.  Acts,  order  12,  sec.  8,  p.  204 ;  Foulke's  Ac.  in 
Sup.  Ct.  63. 

2  Post,  sec.  23;  Baggott  v.  Mullen,  32  Ind.  332. 

*  1  Work's  Ind.  Prac.  and  PL,  sees.  227,  228,  230 ;  Wiley  r.  Pratt,  23  Ind. 
633;  Brown  r.  Nichols,  42  N.  Y.  30 ;  Denton  v.  Noyes,  6  Johns.  298 ;  5  Am. 
Dec.  237,  244 ;  Sterne  v.  Bentley,  3  How.  Pr.  331 ;  Critchfield  v.  Porter, 
3  Ohio,  519;  Coon  v.  Welborn,  83  Ind.  230;  Bush  v.  Bush,  46  Ind.  70; 
Cleveland  v.  Hopkins,  55  Wis.  387;  13  N.  W.  Rep.  225;  Graham  v. 
Spencer,  14  Fed.  Rep.  603 ;  Bagott  v.  Mullen,  32  Ind.  332. 

In  Wiley  v.  Pratt,  the  rule  is  thus  stated:  "  Where  a  judgment  is  re- 
covered in  a  court  of  general  jurisdiction  against  a  defendant,  and  the 
record  shows  that  an  attorney  of  the  court  appeared  for  the  defendant 
and  filed  an  answer,  the  jurisdiction  of  the  court  can  not  be  contro- 
verted, unless  it  be  by  proof  of  fraud,  which  we  are  not  in  this  case  re- 
quired to  decide,  or  that  the  defendant  was  not  a  citizen  of  the  state, 


JURISDICTION    OF    THE    PERSON.  39 

The  authorities  are  not  in  entire  accord  on  this  ques- 
tion, some  of  them  going  to  the  extent  of  holding  that 
as  a  matter  of  policy  a  judgment  rendered  upon  the  ap- 
pearance of  an  attorney  must  be  held  conclusive. 

If  rights  of  innocent  third  parties  have  intervened,  of 
for  any  other  reason  the  party  is  held  to  be  bound  by 
the  judgment,  his  remedy  is  against  the  attorney  who  ap- 
peared for  him  without  authority.^ 

There  is  still  another  line  of  decisions  going  to  the 
other  extreme  and  holding  that  a  judgment  rendered  upon 
the  unauthorized  appearance  of  an  attorney,  where  the  party 
has  had  no  notice  of  the  pendency  of  the  action,  is  void 

nor  during  the  pendency  of  the  proceedings  within  the  jurisdiction  of 
the  court  in  which  the  judgment  was  rendered,  and  had  neither  been 
notified  of  the  pendency  of  the  suit,  nor  had  given  authority  to  the  at- 
torney to  enter  an  appearance  for  him.  .  .  .  While,  however,  a 
party  is  permitted  to  controvert  the  authority  of  the  attorney  to  appear 
for  him  when  he  was  without  the  jurisdiction  of  the  court  rendering 
the  judgment,  and  upon  estabhshing  the  fact  that  the  appearance  was 
unauthorized  is  relieved  from  the  enforcement  of  the  judgment,  this 
relief  will  not  be  granted  where  the  defendant  was  within  the  jurisdic- 
tion of  the  court,  and  an  unauthorized  appearance  has  been  entered  for 
him  by  counsel,  unless  he  can  establish  a  defense  on  the  merits  to  the 
cause  of  action  in  which  the  judgment  M-as  rendered." 

And  in  Work's  Ind.  Practice  &  Pleading,  the  effect  of  the  rule  is  said 
to  be  "  that  where  the  defendant  is  not  within  the  jurisdiction  of  the 
court,  and  has  had  no  notice  of  the  pendency  of  the  action,  the  appear- 
ance of  an  attorney,  without  authority,  does  not  waive  the  failure  to  is- 
sue and  serve  the  summons,  or  make  publication.  He  may,  in  such 
case,  set  aside  the  appearance  so  entered,  without  submitting  to  the 
jurisdiction  of  the  court.  But  where  the  defendant  resides  within  the 
jurisdiction  of  the  court,  or  has  actual  notice  of  the  pendency  of  the 
action,  an  appearance  by  an  attorney  who  has  no  authority  to  appear,  is 
BO  far  binding  upon  him  as  to  waive  any  defect  in  the  process  or  its 
service.  He  may,  by  showing  the  want  of  authority  of  the  attorney  to 
appear,  and  that  he  has  a  good  and  meritorious  defense  to  the  action, 
have  leave  to  prove  such  defense,  and  if  the  defense  is  established,  the 
judgment  will  be  changed  or  modified  accordingly,  but  by  the  very  act 
of  applying  for  such  relief,  he  submits  himself  to  the  jurisdiction  of  the 
court,  and  waives  the  service  of  process,  if  this  has  not  already  been 
done  by  the  appearance  of  the  attorney,  so  that  the  effect  upon  his 
rights,  so  far  as  the  service  of  process  is  concerned,  would  be  the  same 
in  either  case."     1  Work's  Ind.  Prac.  &  PI.,  sec.  230. 

1  Coon  V.  Welborn,  83  Ind.  232  ;  Brown  v.  Nichols,  42  N.  Y.  30. 


40  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

for  want  of  jurisdiction,  and  that  innocent  parties  will  not 
be  protected.' 

In  others  it  is  held  that,  in  case  of  a  direct  attack  upon 
the  jurisdiction  of  the  court,  as  by  motion  in  the  same 
court  to  vacate  the  judgment,  the  want  of  authority  on 
the  part  of  the  attorney  may  be  shown  by  extrinsic  evi- 
dence ;  and  upon  the  fact  being  established  the  judgment 
will  be  declared  void  and  set  aside  absolutely.^  But  it  is 
believed  that  the  rule  laid  down  above  is  the  better  rule, 
and  the  one  sustained  by  the  weight  of  authority.^ 

No  doubt  the  great  weight  of  modern  authority  is  in 
favor  of  the  right  of  the  defendant  to  be  relieved  from  the 

1  Stocking  V.  Hanson,  35  Minn.  207 ;  28  N.  W.  Eep.  507 ;  Reynolds  v. 
Fleming,  30  Kan.  106;  1  Pac.  Rep.  61;  Anderson  v.  Hawne,  115  111.  33; 
3  N.  E.  Rep.  566 ;  Citizens'  Bank  v.  Brooks,  23  Fed.  Rep.  21 ;  Kepley  v. 
Irwin,  14  Neb.  300 ;  15  N.  W.  Rep.  719 ;  McDowell  v.  Gregory,  14  Neb. 
33;  14N.  W.  Rep.  899;  Williams  v.  Neth,  31  N.  W.  Rep.  630;  Great 
AVest  Mining  Co.  v.  Woodmas,  12  Col.  46;  20  Pac.  Rep.  774. 

'  Reynolds  v.  Fleming,  30  Kan.  106;  1  Pac.  Rep.  61. 

3  In  Mutual  Life  Ins.  Co.  v.  Pinner,  43  N.  J.  Eq.  52;  10  Atl.  Rep.  186, 
the  court  said :  "  The  defendant  having  shown  by  satisfactory  proof  that 
his  appearance  was  entered  without  his  authority,  and  having  promptly 
asked  for  relief,  has  a  right,  according  to  the  modern  rule,  to  be  relieved 
against  the  consequences  of  the  appearance.  The  ancient  rule  was 
otherwise.  It  was  formerly  held  that  a  defendant  was  concluded  by  an 
appearance  entered  for  him  without  his  authority,  and  that  the  only  re- 
dress he  could  obtain  for  such  wrong  was  by  an  aciion  against  the  per- 
son who  had  fraudulently  assumed  to  act  for  him.  GifTord  v.  Thorn,  9 
N.  J.  Eq.  702 ;  Price  v.  Ward,  25  N.  J.  Law,  225.  The  injustice  of  this 
rule  is  manifest.  It  compelled  the  defendant  to  stand  bound  by  the 
unauthorized  act  of  a  mere  intermeddler,  and  held  him  concluded  by 
a  judicial  sentence  which  he  had  never  had  an  opportunity  to  con- 
test. The  modern  rule  is  firmly  settled  the  other  way,  and  may  be 
stated  thus :  The  entry  of  an  appearance  for  a  defendant  carries  with  it 
a  presumption  that  it  was  entered  by  authority.  If  the  contrary  be  al- 
leged, affirmative  proof  must  be  produced,  and,  until  it  is,  the  appear- 
ance will  be  held  to  be  valid ;  but  on  its  being  satisfactorily  proved, 
promptly  after  the  discovery  of  the  fact,  that  it  was  entered  without 
authority,  the  defendant  will  be  relieved  from  its  consequences.  Mc- 
Kelway  v.  Jones,  17  N.  J.  Law,  345  ;  Gifford  v.  Thorn,  supra ;  Hess  v.  Cole, 
23  N.  J.  Law,  116;  Price  v.  Ward,  supra;  Dey  v.  Hathaway  Printing  and 
Telephone  Co.,  41  N.  J.  Eq.  419  ;  4  Atl.  Rep.  675.  The  defendant  is  en- 
titled to  an  order  declaring  that  his  appearance  was  entered  without 
authority,  and  that  it  is,  in  consequence,  void  and  of  no  effect." 


JURISDICTION    OF    THE    PERSON.  41 

effects  of  a  judgment  rendered  against  him  upon  an  un- 
authorized appearance,  but  not  that  such  a  judgment  is 
absolutely  void.  The  conflict  of  the  authorities  is  as  to 
the  effect  of  setting  aside  the  judgment.  In  most  of  the 
cases  holding  that  such  a  judgment  is  void,  the  question- 
was  raised  upon  a  direct  proceeding  to  be  relieved  from 
the  judgment,  and  a  holding  that  the  judgment  was  void 
was  unnecessary  to  a  decision  of  the  cases,  but  some  of 
them  were  not. 

The  presumption  is  always  that  the  appearance  was  au- 
thorized, and  the  burden  of  showing  that  it  was  unauthor- 
ized rests  upon  the  party  seeking  relief.^  Bat  the  record 
showing  an  appearance  is  not  conclusive  against  him  that 
the  appearance  was  his  appearance  or  authorized  by  him.^ 
A  distinction  is  made  between  foreisfn  and  domestic  ludo-- 
ments  as  to  the  efi'ect  of  the  recitals  in  the  record.' 

Where  an  attachment  proceeding  in  a  United  States 
court  is  invalid  because  the  defendant  is  not  found  in  the  dis- 
trict, a  subsequent  appearance  by  the  defendant,  although 
it  gives  the  court  jurisdiction  to  proceed  to  judgment, 
has  been  held  not  to  render  the  attachment  proceedings 
valid.^  And  it  may  be  stated  as  a  general  rule  that  where 
certain  steps,  provided  by  statute,  must  be  taken  in  order 
to  obtain  jurisdiction  of  the  proceeding,  a  voluntary  ap- 
pearance by  the  defendant,  and  a  submission  of  his  person 
to  the  jurisdiction  of  the  court,  will  not  give  jurisdiction 
of  such  proceeding.^ 

There  are  two  kinds  of  service,  actual  and  constructive, 
the  first  being  a  notice  served  personally  upon  the  defend- 
ant, and  denominated  personal  service,  the  other  being  by 
publication  in  a  newspaper,  or  in  some  other  way  provided 
by  law.^ 

An  acknowledgment  of  service  may  be  made  in  lieu  of 

'  Reynolds  v.  Fleming,  30  Kan.  106;  1  Pac.  Rep.  64;  Citizens'  Bank  r. 
Brooks,  23  Fed.  Rep.  21  ;  Wheeler  v.  Cox,  56  la.  36 ;  8  X.  W.  Rep.  688. 
'  Citizens'  Bank  v.  Brooks,  21  Fed.  Rep.  21. 
3  Post,  sec.  22 ;  Harshey  v.  Blackmarr,  20  la.  161  ;  89  Am.  Dec.  520. 

*  Noyes  v.  Canada,  30  Fed.  Rep.  665. 

*  Steen  v.  Norton,  45  Wis.  412. 

6  Hahn  v.  Kelly,  34  Cal.  391,  403;  94  Am.  Dec.  742. 


42  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

actual  service,  but  statutory  provisions  authorizing  such 
acknowledgment  usually  require  that  it  shall  be  indorsed 
on  the  summons.' 

Jurisdiction  authorizing  a  personal  judgment  can  only 
be  acquired  by  personal  service,  acknowledgment  of  serv- 
ice in  the  manner  provided  by  law,  or  the  appearance  of 
the  defendant;  and  such  service  must  be  made  within  the 
state  or  territory  where  the  action  is  brought.^ 

Provision  is  sometimes  made  for  personal  service  of  a 
summons  out  of  the  state,  but  such  service  is  treated  as 
constructive  service  by  publication,  and  does  not  give  the 
court  jurisdiction  to  render  a  personal  judgment.^ 

Where  jurisdiction  is  obtained  by  publication,  or  con- 
structive service  in  any  other  way,  the  pleadings  of  the 
plaintiff  can  not  be  amended  after  publication  so  as  to 
allege  a  different  cause  of  action.  The  court  only  acquires 
jurisdiction  of  the  cause  of  action  alleged  in  the  complaint 
at  the  time  publication  is  made.* 

Service  by  publication,  or  personal  service  of  a  non- 
resident out  of  the  state,  can  only  be  had  as  the  founda- 
tion of  a  judgment  or  decree  in  rem.,  where  the  defendant 
has  property  within  the  jurisdiction  of  the  court,  or  in 
cases  affecting  the  status  of  the  parties,  as  for  example,  in 
actions  for  divorce.*  And  in  divorce  cases  such  notice 
gives  the  court  no  jurisdiction  to  render  a  judgment  for  the 
payment  of  money.® 

1  Wood  V.  Pond,  21  Ohio  St.  150. 

'  Wood  V.  Pond,  21  Ohio  St.  150 ;  Stuart  v.  Anderson,  70  Tex.  588 ;  8  S. 
W.  Rep.  295,  298;  Pennoyer  v.  Neff,  95  U.  S.  714 ;  Scott  v.  Noble,  72  Pa. 
St.  119;  13  Am.  Rep.  663;  Galpin  v.  Page,  18  Wall.  367;  Lutz  v.  Kelly, 
47  la.  307;  Schwinger  v.  Hickok,  53  N.  Y.  280. 

3  2  Bates'  PI.  Par.  &  Forms,  990 ;  Wood  v.  Pond,  21  Ohio  St.  148 ;  Will- 
iams V.  Welton,  28  Ohio  St.  4*67 ;  Allen  v.  Cox,  11  Ind.  383 ;  Brooklyn 
Trust  Co.  r.  Bulmer,  49  N.  Y.  84. 

*  Stuart  V.  Anderson,  70  Tex.  588;  8  S.  W.  Rep.  295;  McMinn  v. 
Whelan,  27  Cal.  300,  313 ;  Pennoyer  v.  Neflf,  95  U.  S.  714. 

5  Williams  v.  Welton,  23  Ohio  St.  451,  467 ;  Wood  v.  Stanberry,  21  Ohio 
St.  148;  Pennoyer  v.  Neflf,  95  U.  S.  714;  Galpin  v.  Page,  18  Wall.  369; 
Hunt  V.  Hunt,  72  N.  Y.  237;  28  Am.  Rep.  129;  Cooley's  Const.  Lim.,  5th 
ed.,  404 ;  Cooper  v.  Reynolds,  10  Wall.  319. 

•  Cooley's  Const.  Lim.,  5th  ed.,  501. 


JURISDICTION    OF    THE    PERSON.  43 

In  many  of  the  states  provision  has  been  made  that  for- 
eign corporations  doing  business  therein  shall  designate 
some  one  upon  whom  service  can  be  made,  and  that  sum- 
mons shall  be  served  upon  such  person  so  designated,  or 
that  service  may  be  made  on  certain  of  their  agents^ 
These  statutes  have  been  upheld,  and  it  is  held  that  such 
service  is  sufficient  to  give  the  court  jurisdiction  to  render 
a  personal  judgment  against  the  corporation.^ 

In  some  of  the  states  provision  is  made  for  the  service 
of  summons  by  leaving  a  copy  thereof  at  the  usual  place 
of  residence  of  the  defendant.  This,  if  made  within  the 
state,  is  personal  service.^ 

It  is  not  necessary  that  the  defendant  reside  within  the 
the  state  in  which  the  court  has  jurisdiction.  If  he  is  a 
citizen  of  another  state,  but  voluntarily  comes  into  the 
state  where  the  action  is  brought,  temporarily,  and  is  per- 
sonally served  with  process,  the  service  is  good,  and  he  is 
bound  by  the  judgment.'  Nor  does  the  fact  that  the 
plaintiff  is  a  non-resident  affect  his  right  to  maintain  the 
action.* 

There  can  be  no  appearance  for  a  minor.  In  order  to 
give  jurisdiction  of  his  person,  service  must  be  made  as 
provided  by  law.* 

Where  service  by  publication  is  authorized,  a  strict 
compliance  with  the  law  providing  therefor  is  required.^ 
This  is  placed  upon  the  ground  that  the  proceeding  is  in 
derogation    of  the  common    law.^     But  the  common-law 

1  Gibbs  V.  Queen  Ins.  Co.,  G3  N.  Y.  114,  124 ;  20  Am.  Rep.  513 ;  State 
V.  U.  S.  Mut.  Ac.  Ass'n,  67  Wis.  624  ;  Lafayette  Ins.  Co.  v.  French,  18 
How.  404;  L.  R.  9  Exch.  345;  10  Moak's  Eng.  Rep.  492;  Knapp  v. 
National  Mut.  F.  Ins.  Co.,  30  Fed.  Rep.  607. 

2  Thomas  v.  Richards,  69  Wis.  671 ;  Dunkle  v.  Elston,  71  Ind.  585. 

^  Rape  V.  Heaton,  9  Wis.  328,  343;  76  Am.  Dec.  269;  Peabody  v.  Ham- 
ilton, 106  Mass.  220;  Movvry  v.  Chase,  100  Mass.  85. 

*  Peabody  v.  Hamilton,  106  Mass.  220;  Mowry  r.  Chase,  100  Mass.  85. 

*  Carver  v.  Carver,  64  Ind.  194;  Helmes  v.  Chadbourne,  45  Wis.  60; 
Roy  V.  Rowe,  90  Ind.  54. 

^Jordan  v.  Giblin,  12  Cal.  100;  Ricketson  v.  Richardson,  26  Id.  149; 
McMinn  v.  Whelan,  27  Id.  300;  Galpin  v.  Page.  18  Wall.  369. 
'  Ricketson  v.  Richardson,  26  Cal.  149. 


44  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

rule  that  statutes  in  derogation  thereof  shall  be  strictly 
construed  has  been  abrogated  by  the  codes  of  many  of  the 
states/ 

At  common  law  constructive  service  was  unknown. 
It  is  a  creature  of  statute.  It  lias,  however,  become  al- 
most, if  not  quite,  universal  in  all  of  the  states,  but  the 
statutes  differ  materially  as  to  the  steps  necessary  to  pro- 
cure an  order  for  publication  and  the  manner  in  which  it 
shall  be  made.  This  subject  is  somewhat  more  fully  con- 
sidered in  another  place.^ 

In  England  it  is  provided  by  the  rules  of  court  that  the 
court  or  judge  may  make  such  order  for  service  by  adver- 
tisement or  otherwise,  as  may  be  just.^  The  application 
for  such  an  order  must  be  supported  by  an  affidavit  set- 
ting forth  the  grounds  upon  which  the  application  is 
made.*  And  such  a  showing  is  usually  required  in  this 
country. 

14.  Jurisdiction  in  rem. — The  great  and  important  dis- 
tinction between  actions  m  personam  and  proceedings  in 
rem,  in  respect  to  the  question  of  jurisdiction,  consists  in 
the  different  means  of  acquiring  such  jurisdiction  in  the 
two  classes  of  cases.  In  an  action  to  recover  a  personal 
judgment  against  a  defendant,  personal  or  actual,  service 
of  notice  upon  him  is  absolutely  necessary  to  give  the 
court  jurisdiction.^ 

In  proceedings  in  rem  this  is  not  necessary.  Jurisdiction 
of  the  property  is  acquired  by  a  seizure  of,  or  levy  upon, 
the  same  under  some  appropriate  writ  issuing  out  of  the 
court  having  jurisdiction  over  such  property;  or  arises 
from  some  contract  lien  existing  against  the  property  and 

'  Stimson's  Am.  Stat.  Law,  sec.  1021.  '  Post,  sec.  38. 

'  "  When  service  is  required,  the  writ  shall,  wherever  it  is  practicable, 
be  served  in  the  manner  in  which  personal  service  is  now  made,  but,  if 
it  be  made  to  appear  to  the  court  or  a  judge  that  the  plaintiff  is  from 
any  cause  unable  to  effect  prompt  personal  service,  the  court  or  judge 
may  make  such  order  for  substituted  or  other  service,  or  for  the  substi- 
tution for  service  of  notice,  by  advertisement,  or  otherwise,  as  may  be 
just."     Wilson's  Jud.  Acts,  192,  sec.  2. 

*  Wilson's  Jud.  Acts,  198,  Order  X.  »  Ante,  sec.  13. 


JURISDICTION    IN    REM.  45 

which  is  sought  to  be  enforced.^  But  such  acquisition  of 
jurisdiction,  in  order  to  be  effectual,  must  be  followed  by 
notice,  in  some  form,  to  the  party  whose  rights  are  to  be 
cut  off"  or  affected  by  a  decree  against  the  property.'^ 
Such  notice,  either  personal  or  constructive,  is  as  necessary 
to  the  binding  effect  of  a  decree  in  rem,  if  directly  at- 
tacked, as  personal  notice  is  in  case  of  an  action  against 
the  person.^  And  by  statute  in  some  of  the  states  service 
of  notice  on  the  party  owning  or  interested  in  the  prop- 
erty, is  sufficient  to  give  jurisdiction  without  a  seizure  of 
the  property.^ 

A  failure  to  give  notice  does  not  deprive  the  court  of 
jurisdiction  or  render  the  judgment  void.  Therefore,  the 
objection  that  the  affidavit  for  publication  or  the  publica- 
tion is  defective,  or  even  that  no  notice  was  given,  can 
only  be  taken  advantage  of  by  appeal.^ 

This  can  not  be  so,  however,  where  the  jurisdiction  of 
the  court  is  sought  to  enforce  a  lien  upon  property,  the 
property  not  being  seized  or  levied  upon. 

In  some  cases  it  is  held  that,  in  attachment  proceedings, 
seizure  of  the  property  is  not  necessary  to  give  jurisdiction, 
that  if  the  defendant  has  property  in  the  state  that  fact, 
and  not  its  seizure,  gives  jurisdiction.®  But  this  is  at 
least  a  doubtful  proposition.  In  such  cases  the  court, 
without  the  issuance  of  the  writ,  would  certainly  have  no 
jurisdiction  to  proceed,  as  it  is  through  the  writ  of  attach- 
ment alone  that  jurisdiction  is  obtained.  It  would  seem, 
therefore,  that  the  levy  of  the  writ,  which  alone  creates 
the  lien  upon  which  the  judgment  of  the  court  can  rest, 

'  Ante.  sec.  12. 

'  Waldron  v.  Chicago  &  X.  W.  R.  Co.,  1  Dak.  351 ;  46  N.  W.  Rep.  456, 
459. 

*  Waples'  Pro.  in  Rem.,  sec.  626;  Stuart  v.  Anderson,  70  Tex.  588; 
8  S.  W.  Rep.  295 ;  Lutz  v.  Kelly,  47  la.  309 ;  Pennoyer  v.  Neff,  95  U.  S. 
714. 

*  Averill  v.  Steamer  Hartford,  2  Cal.  308. 

*  Lessee  of  Paine  v.  Mooreland,  15  Ohio,  436;  Drake  on  Attach.,  sec. 
437;  Cooper  v.  Reynolds,  10  Wall.  319;  Williams  v.  Stuart,  3  Wis.  773. 

®  Jarvis  v.  Barrett,  14  Wis.  591 ;  Force  v.  Gower,  23  How.  Prac.  294  ; 
Fiske  V.  Anderson,  33  Barb.  71. 


46  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

is  necessary  to  give  tlie  court  jurisdiction.  There  are 
many  cases,  however,  in  which  no  seizure  of  the  property 
is  necessary.  If  the  action  is  to  enforce  a  lien  upon  the 
property  created  by  the  contract,  as,  for  example,  a  suit 
to  foreclose  a  mortgage,  seizure  of  the  property  is  not 
necessary.  The  fact  that  the  property  is  within  the  state 
is  the  essential  fact  upon  which  jurisdiction  depends  in 
that  class  of  cases.  But  in  such  cases  notice  in  some 
form  is  necessary  to  give  jurisdiction. 

The  doctrine  that  the  seizure  of  the  property  under  a 
writ  of  attachment  is  not  necessary  to  give  jurisdiction, 
seems  to  be  placed  upon  the  ground  that  the  writ  is  merely 
a  provisional  remedy  incidental  to  the  action  to  recover 
the  debt.  But  it  must  be  borne  in  mind  that  where  the 
defendant  is  a  non-resident  it  is  the  provisional  remedy 
alone  that  can  be  enforced.  No  matter  how  much  prop- 
erty the  defendant  may  own  within  the  jurisdiction  of  the 
court,  any  judgment  it  may  render  must  be  confined  to 
the  property  attached.  It  is  the  property  seized  or  levied 
upon  over  which  the  court  obtains  jurisdiction,  and  not 
the  whole  property  of  the  defendant  within  the  state.^ 

'  Cooper  V.  Reynolds,  10  Wall.  308  ;  Pennoyer  v.  NeflF,  95  U.  S.  723  ; 
Drake  on  Attach.,  sees.  5,  449;  Lessee  of  Paine  v.  Mooreland,  15  Ohio, 
'443 ;  McKinney  v.  Collins,  88  N.  Y.  216. 

The  case  of  Cooper  v.  Reynolds  is  a  leading  case  on  this  subject.  In 
that  case  the  court  said:  "Now,  in  this  class  of  cases,  on  what  does 
the  jurisdiction  of  the  court  depend?  It  seems  to  us  that  the  seizure 
of  the  property,  or  that  which,  in  this  case,  is  the  same  in  eflfect,  the  levy 
of  the  writ  of  attachment  on  it,  is  the  one  essential  requisite  to  jurisdiction, 
as  it  unquestionably  is  in  proceedings  purely  m  rem."  And  again  :  "  So, 
also,  while  the  general  rule  in  regard  to  jurisdiction  in  rem  requires  the 
actual  seizure  and  possession  of  the  res  by  the  officer  of  the  court,  such 
jurisdiction  may  be  acquired  by  acts  which  are  of  equivalent  import, 
and  which  stand  for  and  represent  the  dominion  of  the  court  over  the 
thing,  and  in  effect  subject  it  to  the  control  of  the  court.  Among  this 
latter  class  is  the  levy  of  a  writ  of  attachment  or  seizure  of  real  estate, 
which  being  incapable  of  removal,  and  lying  within  the  territorial  ju- 
risdiction of  the  court,  is  for  all  practical  purposes  brought  under  the 
jurisdiction  of  the  court  by  the  officer's  levy  of  the  writ  and  return  of 
that  fact  to  the  court.  So  the  writ  of  garnishment,  or  attachment,  or 
other  form  of  service,  on  a  party  holding  a  fund  which  becomes  the  sub- 
ject of  litigation,  brings  that  fund  under  the  jurisdiction  of  the  court. 


JURISDICTION    IN    KEM.  47 

It  is  sometimes  said,  in  the  decided  cases,  that  proceed- 
ings in  attachment  are  not  proceedings  in  rem,  but  they 
are  essentially  so  where  there  is  no  personal  service  on 
the  defendant;  as  in  that  case  the  proceeding  is  entirely 
against  the  property,  and  any  judgment  rendered  must  be' 
confined  to  it. 

As  it  is  necessary  to  the  jurisdiction  of  the  court  that 
it  obtain  the  custody  or  control  of  the  property,  so  it  is 
necessary  that  it  shall  not,  at  any  time,  lose  such  custody 
or  control.  If  it  does,  its  jurisdiction  ceases  from  that 
moment.^ 

By  this  is  not  meant  that  the  actual  custody  of  the 
property  shall  be  maintained.  It  may  be  released  by  giv- 
ing bond,  or  in  some  other  way  provided  by  law,  which 
does  not  affect  the  plaintiff's  claim  of  right  to  resort  to 
it  for  his  debt.  The  bond  given  takes  the  place  of  the 
property,  and  the  jurisdiction  over  the  property  is  not 
affected. 

It  is  held  that  it  is  not  the  affidavit  alleging  that  the 
defendant  has  property  in  the  state  that  gives  jurisdiction, 
and  that  the  property  must,  in  fact,  be  within  the  jurisdic- 
tion of  the  court,  and,  therefore,  the  fact  alleged  in  the 
affidavit  may  be  disproved  and  the  jurisdiction  thereby 
defeated.^  But  if  it  is  the  levy  of  the  writ  that  gives 
jurisdiction,  no  such  question  of  fact  could  arise  except 
where  a  question  should  arise  as  to  the  ownership  of 
property  levied  upon. 

If  the  defendant  is  personally  served  within  the  state, 

though  the  money  may  remain  in  the  actual  custody  of  one  not  an  offi- 
cer of  the  court."     Cooper  v.  Reynolds,  10  Wall.  317,  319. 

"  What,  then,  gives  the  court  jurisdiction  in  a  proceeding  in  attach- 
ment ?  The  filing  of  the  proper  affidavit,  issuing  the  writ,  and  attaching 
the  property.  The  moment  the  writ  goes  into  the  hands  of  the  officer, 
he  is  authorized,  and  required,  to  seize  the  property.  When  this  is 
done  the  property  is  taken  out  of  the  possession  of  the  debtor  into  the 
custody  of  the  law."     Lessee  of  Paine  i'.  Mooreland,  15  Ohio,  443,  n. 

1  Waples'  Attach.  312. 

'  Fiske  V.  Anderson,  .33  Barb.  (N.  Y.)  71. 

This  case  of  Fiske  c.  Anderson,  and  Force  v.  Gower.  23  How.  Prac.  294, 
are  practically  overruled  by  the  later  case  of  McKinney  r.  Collins,  88  X. 
Y.  216. 


48  GENERAL    PRINCIPLES   AFFECTING   JURISDICTION. 

although  a  non-resident,  and  only  temporarily,  or  tran- 
siently, therein,  this  gives  the  court  full  jurisdiction,^ 

Neither  the  seizure  of  the  property,  nor  notice  to  the 
owners,  is  alone  sufficient  to  authorize  a  judgment  affect- 
ing the  property  or  the  interest  of  the  parties  therein. 
Seizure  of  the  property'  is  necessary  to  give  jurisdiction 
over  it,  and  notice  to  the  parties  interested  is  necessary  to 
authorize  a  decree  affecting  such  interests.^ 

Where  the  action  is  for  the  recovery  of  a  debt  the  juris- 
diction of  the  court  over  the  property  thus  brought  under 
its  control  is  limited.  The  court  simply  acquires  the  right 
to  apply  the  property  to  the  satisfaction  of  any  amount 
that  may  be  found  to  be  due  the  plaintiff.^ 

1  Ante,  sec.  13 ;  Peabody  v.  Hamilton,  106  Mass.  220. 

'^  Lutz  V.  Kelly,  47  la.  309;  Drake  on  Attach.,  sees.  436,  437;  Darrance 
V.  Preston,  18  la.  396. 

5  Lutz  V.  Kelly,  47  la.  319 ;  Pennoyer  v.  Neff,  95  U.  S.  714,  723 ;  Dar^ 
ranee  v.  Preston,  18  la.  399. 

"  Such  a  service  simply  authorizes  the  court  to  conclude  the  rights 
and  interests  of  a  non-resident  in  property  over  which  the  court,  by 
process  of  attachment,  or  otherwise,  has  acquired  jurisdiction  in  rem, 
and  to  subject  such  property  to  sale  in  satisfaction  of  an  amount  found 
due.  It  follows  that  the  judgment  in  question,  considered  as  a  mere 
personal  judgment,  is  a  nullity,  and  that  the  sale  of  real  estate  there- 
under was  unauthorized  and  illegal."     Lutz  v.  Kelly,  47  la.  310. 

"  Our  statute  provides  for  the  service  of  an  original  notice  (process) 
outside  of  the  state  (revision,  section  2815,  subdivision  4,  and  section 
2835)  as  well  as  upon  non-residents  by  publication.  (Revision,  section 
2831  to  section  2834.)  But  it  is  clear  upon  principle,  as  has  been  recog- 
nized and  determined  by  this  court,  that  such  service,  by  publication, 
or  by  personal  service  without  the  state,  upon  a  person  who  is  not  a 
resident  or  citizen  of  this  state,  confers  no  jurisdiction  either  as  to  the 
person  or  the  property  of  such  non-resident.  Story  on  Conflict  of  Laws, 
sec.  539  ;  Weil  v.  Lowenthal,  10  la.  575."  Darrance  v.  Preston,  18  la.  399. 
A  very  accurate  statement  of  the  law  affecting  this  question  will  be 
found  in  Cooper  v.  Reynolds,  10  Wall.  317,  where  the  court,  speaking 
through  Mr.  Justice  Miller,  said  :  "  Its  essential  purpose  or  nature  is  to 
establish,  by  the  judgment  of  the  court,  a  demand  or  claim  against  the 
defendant,  and  to  subject  his  property,  lying  within  the  territorial  juris- 
diction of  the  court,  to  the  payment  of  that  demand.  But  the  plaintiff 
is  met.  at  the  commencement  of  his  proceedings,  by  the  fact  that  the 
defendant  is  not  within  that  territorial  jurisdiction,  and  can  not  be 
served  with  any  process  by  which  he  can  be  brought,  personally,  within 
the  power  of  the  court.     For  this  difficulty  the  statute  has  provided  a 


JURISDICTION    IN    REM.  49 

And  where  the  complaint,  or  petition,  is  so  amended  as 
to  set  up  a  new  cause  of  action,  a  new  notice  must  be 
given,  or  a  decree  rendered  upon  such  amended  pleading 
will  be  void  for  want  of  jurisdiction.^ 

Only  the  rights  of  such  persons  as  are  notified  of  the 
proceeding,  in  the  manner  provided  by  law,  will  be  afiected 
by  the  decree.^ 

If  the  proceeding  is  against  the  interest  of  certain  per- 

remedy.  It  says  that,  upon  affidavit  being  made  of  that  fact,  a  writ  of 
attachment  may  be  issued  and  levied  on  any  of  the  defendant's  prop- 
erty, and  a  publication  may  be  made  warning  him  to  appear ;  and  that, 
thereafter,  the  court  may  proceed  in  the  case  whether  he  appears  or 
not.  If  the  defendant  appears  the  cause  becomes,  mainly,  a  suit  in 
j)ersonam,  with  the  added  incident,  that  the  property  attached  remains 
liable,  under  the  control  of  the  court,  to  answer  to  any  demand  which 
may  be  established  against  the  defendant  by  the  final  judgment  of  the 
court.  But  if  there  is  no  appearance  of  the  defendant,  and  no  service 
of  process  on  him,  the  case  becomes,  in  its  essential  nature,  a  pro- 
ceeding in  rem,  the  only  effect  of  which  is  to  subject  the  property 
attached  to  the  payment  of  the  demand  which  the  court  may  find  to  be 
due  to  the  plaintiff.  That  such  is  the  nature  of  this  proceeding  in  this 
latter  class  of  cases  is  clearly  evinced  by  two  well  established  proposi- 
tions: First,  The  judgment  of  the  court,  though  in  form  a  personal 
judgment  against  the  defendant,  has  no  effect  beyond  the  property 
attached  in  that  suit.  No  general  execution  can  be  issued  for  any 
balance  unpaid  after  the  attached  property  is  exhausted.  No  suit  can 
be  maintained  on  such  a  judgment,  in  the  same  court  or  in  any  other, 
nor  can  it  be  used  as  evidence  in  any  other  proceeding  not  affecting  the 
attached  property,  nor  could  the  costs  in  that  proceeding  be  collected  of 
defendants  out  of  any  other  property  than  that  attached  in  the  suit. 
Second,  The  court,  in  such  a  suit,  can  not  proceed  unless  the  officer 
finds  some  property  of  defendant  on  which  to  levy  the  writ  of  attach- 
ment. A  return  that  none  can  be  found  is  the  end  of  the  case,  and 
deprives  the  court  of  further  jurisdiction,  though  the  publication  may 
have  been  duly  made  and  proven  in  court.  Now,  in  this  class  of  cases, 
on  what  does  the  jurisdiction  of  the  court  depend?  It  seems  to  us  that 
the  seizure  of  the  property,  or  that  which,  in  this  case,  is  the  same  in 
effect,  the  levy  of  the  writ  of  attachment  on  it,  is  the  one  essential 
requisite  to  jurisdiction,  as  it  unquestionably  is  in  proceedings  purely 
in  rem.  Without  this  the  court  can  proceed  no  further;  with  it  the 
court  can  proceed  to  subject  that  property  to  the  demand  of  plaintiff." 
Cooper  V.  Reynolds,  10  Wall.  317;  Pennoyer  v.  Neff,  95  U.  8.  723;  Row- 
ley V.  Berriau,  12  111.  199. 

^Ante,  sec,  13;  Stuart  v.  Anderson,  70  Tex.  588;  8  S.  W.  Rep.  295. 

'  Waples'  Pro.  in  Rem.,  sec.  626. 
4 


50  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

sons,  and  the  object  is  to  reach  that  interest  alone,  the  no- 
tice should  be  directed  to  such  persons.  But  the  proceed- 
ing may  be  purely  against  the  thing,  in  which  case  it  is 
sometimes  said  that  the  proceeding  is  against  all  the 
world,  and  the  notice  must  necessarily  be  general.  All 
the  world  being  parties,  the  notice  must  be  to  all  the 
world.'  Under  such  a  notice  any  and  all  persons  who  claim 
any  interest  in  the  property  are  called  upon  to  assert  such 
claims;  and  if  they  do  not,  their  interests  are  cut  otf  or 
made  subservient  to  the  decree  rendered.* 

If  the  notice  is  limited  to  certain  persons,  made  parties 
to  the  action,  the  decree  rendered  is  binding  upon  the 
rights  of  such  parties  only.' 

The  fact  that  the  process  of  a  court  can  not  run  beyond 
the  territory  over  which  it  has  jurisdiction,  has  given  rise  to 
the  necessity  for  the  substitution  of  some  notice,  other 
than  personal  notice,  on  the  party,  either  where  the  pro- 
ceeding is  strictly  against  the  property,  without  making 
any  person  a  party,  or  where  the  persons  made  parties  are 
out  of  the  jurisdiction  of  the  court,  and  can  not,  for  that 
reason,  be  served  with  i»ersonal  notice.  The  notice  thus 
substituted  is  different  in  the  different  states,  but  usually 
notice  by  publication,  in  some  form,  is  provided  for.  In 
some  states  provision  for  personal  service  outside  of  the 
state  is  made,  which  is  the  same,  in  legal  effect,  as  notice 
by  publication.  They  are  both  constructive,  and  not  per- 
sonal or  actual  notice.* 

At  common  law,  and  in  common  law  actions,  these  pro- 
visional remedies  by  which  the  property  of  defendants, 
not  personally  served,  can  be  reached  and  applied  to  the 
payment  of  their  debts,  were  unknown.  It  was,  and  is, 
one  of  the  distinguishing  features  of  the  common  law  that 
no  judgment  affecting  the  personal  or  property  rights  of 
a  defendant  can  be  rendered  except  upon  personal  service. 
And  originally  no  judgment  could  be  taken,  except  upon 

MVaples'   Pro.  in   Rem.,   sec.   628;    Waples'   Attach.   314;    Cooley's 
Const.  Lim.,  5th  ed.,  497. 
»  Waples'  Pro.  in  Rem.,  sees.  628-630.  »  Id.  *  Ante,  sec.  13. 


TERRITOKIAL    JURISDICTION.  51 

the  actual  appearance  of  the  defendant  in  court.  If  he 
failed  to  appear,  after  being  served,  the  plaintiff's  only 
remedy,  where  the  defendant  resided  out  of  the  jurisdic- 
tion, and  had  property  in  it,  was  to  have  him  proclaimed 
an  outlaw,  and  thus  obtain  a  part  of  his  property  for- 
feited." 

By  the  common  law  procedure  act  of  England  of  1852, 
it  was  provided  that  upon  a  proper  showing  the  court  or 
judge  might,  by  order,  give  the  plaintiff  leave  to  proceed 
without  service.^  And  the  present  judicature  acts  pro- 
vide for  substituted  service.^ 

In  this  country,  the  law  regulating  the  manner  of  serv- 
ice has,  at  the  present  day,  become  almost  if  not  entirely 
statutory.  Therefore,  in  attempting  to  ascertain  what  no- 
tice is  sufficient  in  any  case,  one  must  look  to  the  statute 
of  the  state  in  which  the  question  arises.  It  is  not  within 
the  scope  of  this  work  to  attempt  to  distinguish  between 
these  different  statutory  provisions,  or  to  call  attention  to 
any  of  them,  but  to  deal  with  general  principles  applica- 
ble to  all  of  them.  It  will  be  found,  however,  that  there 
is  but  little  difference  in  principle  between  the  statutory 
provisions  of  different  states.  They  differ  in  details  and 
not  in  substance.  And  it  will  be  observed  that  the  lines 
that  divide  actions  at  law  and  suits  or  proceedings  in 
equity  with  reference  to  this  question  are  maintained,  to 
a  great  extent,  by  statutes  relating  to  the  subject. 

It  is  generally  held  that  statutes  authorizing  notice,  other 
than  by  personal  service,  must  be  strictly  pursued  in  order 
to  give  jurisdiction,  because  the  mode  provided  for  is  not 
according  to  the  course  of  the  common  law.* 

15.  Territorial  Jurisdiction.  Xo  state  or  country  can 
exercise  direct  jurisdiction  or  authority  over  persons  or 

'  Foulke's  Ac.  in  the  Sup.  Ct.  59. 
^  Day's  Com.  Law  Prac.  40,  sec.  17. 
'  Wilson's  Jud.  Acts,  pp.  192,  198,  559. 

♦Jordan  r.  Giblin,  12  Cal.  100;  Ricketson  v.  Richardson,  26  Cal.  153; 
Freeman  on  Judg.,  sec.  127.     Hee  post,  sec.  25. 


52  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

property  without  its  territory.^  And  the  same  rule  is  ap- 
plicable to  smaller  subdivisions  of  government,  districts, 
counties,  townships,  or  cities,  and  the  attempt,  on  the  part 
of  a  court,  to  extend  its  process  beyond  the  territory  over 
which  it  has  jurisdiction,  is  the  same  whether  the  ter- 
ritory be  a  state  or  a  county.^  But  every  state  has  au- 
thority to  prescribe  the  means  by  which  its  own  citizens 
shall  be  made  subject  to  the  jurisdiction  of  its  own  courts. 
And  it  may,  and  frequently  the  states  do,  provide  that 
the  process  of  courts  whose  jurisdiction  over  the  subject- 

'  Story's  Conflict  of  Laws,  sec.  20 ;  Pennoyer  v.  Neff,  95  U.  S.  722 ; 
People  'v.  Col.  Cent.  R.  R.  Co.,  42  Fed.  Rep.  638 ;  Bartlett  v.  Knight,  2 
^m.  Dec.  45,  note;  Weil  v.  Lowenthal,  10  la.  575. 

*  Galpin  v.  Page,  18  Wall.  367  ;  Phillips  v.  Thrall,  26  Kan.  780. 

In  Galpin  v.  Page,  the  Supreme  Court  of  the  United  States  said  :  "  The 
tribunals  of  one  state  have  no  jurisdiction  over  the  persons  of  other 
states  unless  found  within  their  territorial  limits;  they  can  not  extend 
their  process  into  other  states,  and  any  attempt  of  the  kind  would  be 
treated  in  every  other  forum  as  an  act  of  usurpation  without  any  bind- 
ing efficacy.  'The  authority  of  every  judicial  tribunal  and  the  obliga- 
tion to  obey  it,'  says  Burge  in  his  Commentaries,  '  are  circumscribed  by 
the  limits  of  the  territory  in  which  it  is  established.'  '  No  sovereignty,' 
says  Story  in  his  Conflict  of  Laws,  '  can  extend  its  process  beyond  its 
own  territorial  limits,  to  subject  either  persons  or  property  to  its  judicial 
decisions.  Every  exertion  of  authority  of  this  sort  beyond  this  limit  is 
a  mere  nullity  and  incapable  of  binding  such  persons  or  property  in  any 
other  tribunals.'  Section  539.  And  in  Picquet  v.  Swan,  5  Mass.  40,  the 
same  learned  justice  says:  '  The  courts  of  a  state,  however  general  may 
be  their  jurisdiction,  are  necessarily  confined  to  the  territorial  limits  of 
the  state.  Their  process  can  not  be  executed  beyond  those  limits ;  and 
any  attempt  to  act  upon  persons  or  things  beyond  them  would  be 
deemed  a  usurpation  of  foreign  sovereignty,  not  justified  or  acknowl- 
edged by  the  law  of  nations.  Even  the  court  of  King's  Bench,  in 
England,  though  a  court  of  general  jurisdiction,  never  imagined  that  it 
could  serve  process  in  Scotland,  Ireland,  or  the  colonies,  to  compel  an 
appearance,  or  justify  a  judgment  against  persons  residing  therein  at 
the  time  of  the  commeneement  of  the  suit.  This  results  from  the  gen- 
eral principle  that  a  court  created  within  and  for  a  particular  territory 
is  bounded  in  the  exercise  of  its  powers  by  the  limits  of  such  territory. 
It  matters  not  whether  it  be  a  kingdom,  a  state,  a  county,  or  a  city,  or 
other  local  district.  If  it  be  the  former,  it  is  necessarily  bounded  and 
limited  by  the  sovereignty  of  the  government  itself,  which  can  not  be 
extra-territorial.  If  the  latter,  then  the  judicial  interpretation  is  that 
the  sovereign  has  chosen  to  assign  this  special  limit,  short  of  his  general 
authoritv.'  " 


TERRITORIAL    JURISDICTION.  Oo 

matter  is  confined  to  a  county,  or  other  limited  territory 
within  the  state,  shall  extend  throughout  the  state.  But 
no  state  can,  by  law  or  otherwise,  give  its  courts  power  or 
authority  tb  extend  its  process  into  any  other  state  ox 
country,  even  as  against  its  own  citizens,  for  any  purpose, 
without  the  consent  of  such  state  or  country.^  Such  con- 
sent is  sometimes  given,  so  far  as  it  aiFects  the  citizens  of 
the  country  claiming  such  privilege,  as  a  matter  of  comity, 
but  it  can  not  be  demanded  as  even  a  moral  obligation.- 

The  question  whether  the  courts  of  one  state  can  enter- 
tain jurisdiction  of  an  action  to  compel  the  specific  per- 
formance of  a  contract  to  convey  real  estate  situated  in 
another  state  where  it  has  jurisdiction  of  the  person  of 
the  defendant,  is  not  free  from  doubt.  Under  the  peculiar 
language  of  the  statutes  of  some  of  the  states,  it  has  been 
held  that  the  action  is  so  far  an  action  to  determine  an 
interest  in  land  as  to  render  it  local  and  triable  where  the 
land  is  situated.^ 

But,  independent  of  these  statutory  provisions,  the 
weight  of  authority  seems  to  be  that  the  action  is  one 
upon  contract,  afifecting  the  person,  and  therefore  follows 
the  person  of  the  defendant  and  may  be  maintained  by 
the  courts  of  a  state  having  jurisdiction  of  the  person  of 
the  defendant,  although  the  land  is  situated  in  another 
state.*  But  whether  the  court  can  go  further  and  enforce 
a  conveyance  is  still  more  doubtful.  To  allow  such  a 
power  is  to  concede  to  the  courts  of  one  state  the  jurisdic- 
tion to  render  a  decree,  and  enforce  a  conveyance,  which 
would  pass  title  to  real  estate  outside  of  its  territorial 
jurisdiction.  And  yet  some  of  the  cases  go  to  that 
extent.^ 

^  Lutz  V.  Kelly,  47  la.  309.  ^  Story's  Con.  of  Laws,  sec.  21  et  seq. 

•'  Ayite,  sec.  12;  1  Work's  Ind.  Prac.  &  PL,  sec.  180;  Parker  r,-.  McAl- 
ister,  14  Ind.  12 ;  Vail  v.  Jones,  31  Ind.  467  ;  Franklin  v.  Dutton,  79  Cal.  605. 

*  Ante,  sec.  12;  Massie  v.  Watts,  6  Cranch,  148;  Watkins  v.  Holman, 
16  Pet.  25;  Pennoyer  v.  Neflf,  95  U.  S.  723;  Burnley  v.  Stevenson,  24  Ohio 
St.  477;  15  Am.  Rep.  621. 

»  Muller  V.  Dows,  94  U.  S.  449  ;  Seixas  v.  King,  39  La.  Ann.  510 ;  2  Sou. 
Rep.  416. 

The  case  of  Muller  v.  Dows,  was  an  action  to  foreclose  a  mortgage 


54  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

Ill  most  of  the  states  provision  is  made  for  jurisdiction 
relating  to  lands  situate  partly  in  different  counties  by 
giving  jurisdiction  to  the  courts  in  which  any  part  of  the 

given  by  a  railroad  company  upon  its  line  of  railroad,  a  part  of  wliicli 
was  within  the  state  over  which  the  court  had  jurisdiction,  but  a  part 
of  the  line  extended  into  another  state.  The  mortgage  covered  the  en- 
tire line.  It  was  held  that  the  court  had  jurisdiction  to  foreclose  the 
mortgage  as  to  the  entire  line,  and  to  order  the  sale  of  the  property  as 
an  entirety.  But  in  passing  upon  this  question  the  court  said  :  "  With- 
out reference  to  the  English  chancery  decisions,  where  this  objection  tu 
the  decree  would  be  quite  untenable,  we  think  the  power  of  courts  of 
chancery  in  this  country  is  sufficient  to  authorize  such  a  decree  as  was 
here  made.  It  is  here,  undoubtedly,  a  recognized  doctrine  that  a  court 
of  equity  sitting  in  a  state,  and  having  jurisdiction  of  the  person,  may 
decree  a  conveyance  by  him  of  land  in  another  state,  and  may  enforce 
the  decree  by  process  against  the  defendant.  True,  it  can  not  send  its  process 
into  that  other  state,  nor  can  it  deliver  possession  of  land  in  another 
jurisdiction,  hut  it  can  command  and  enforce  a  transfer  of  the  title.  And 
there  seems  to  be  no  reason  why  it  can  not,  in  a  proper  case,  effect  the 
transfer  by  the  agency  of  the  trustees  when  they  are  complainants." 

^Yith  respect  to  so  much  of  this  opinion  as  relates  to  the  matter  of  en- 
forcing contracts  to  convey,  it  must  be  regarded  as  the  reasoning  of  the 
court  rather  than  an  authoritative  decision,  as-no  such  question  was  be- 
fore the  court.  The  case  of  Seixas  v.  King  is  directly  on  the  point,  and 
is  based  upon  the  case  of  Muller  v.  Dows. 

The  supreme  court  of  Ohio  has  taken  a  different  view  of  the  question. 
In  the  case  of  Burnley  v.  Stevenson,  24  Ohio  St.  474,  478 ;  15  Am.  Rep.  621, 
the  doctrine  that  a  court,  of  chancery  in  one  state  has  power  to  compel  the 
specific  performance  of  a  contract  in  relation  to  lands  situate  in  another 
state  was  considered,  and  the  court  held  that  a  decree  directing  a  con- 
veyance was  one  in  personam,  bound  the  consciences  of  those  againpt 
whom  it  was  rendered,  and  was  binding  upon  them  as  one  fixing  and 
determining  the  equities  of  the  parties  in  the  land  when  pleaded  in  a 
court  of  the  state  in  which  the  land  was  situated.  It  was  distinctly 
held,  however,  that  such  a  decree  could  not  transfer  the  title  to  the  land 
in  another  state,  and  that  a  deed  executed  by  a  master  under  the  direc- 
tion of  the  court  could  have  no  greater  effect,  but  that  the  court  had 
power  to  compel  the  parties  to  make  the  conveyance  by  attachment  as 
for  contempt.  The  court  say :  "  That  courts  exercising  chancery 
powers  in  one  state  have  jurisdiction  to  enforce  a  trust  and  compel  the 
specific  performance  of  a  contract  in  relation  to  lands  situate  in  another 
state,  after  having  obtained  jurisdiction  of  the  persons  of  those  upon 
whom  the  obligation  rests,  is  a  doctrine  fully  settled  by  numerous  de- 
cisions. Penn  v.  Lord  Baltimore,  1  Ves.  444 ;  Massie  v.  Watts,  G  Cranch, 
148  ;  Penn  v.  Hay  ward,  14  Ohio  St.  312,  and  cases  therein  cited.  It  does 
not  follow,  however,  that  a  court  having  power  to  compel  the  parties 


TERRITORIAL    JURISDICTION.  55 

land  is  situated.  Such  legislation  removes  all  question 
where  lands,  the  suhject  of  the  same  action,  are  located  in 
more  than  one  county.  But  it  is  held  that  where  lands 
situated  partly  in  one  state  and  partly  in  another  are  cov- 
ered by  the  same  mortgage,  the  courts  of  either  state  have 

before  it  to  convey  lands  situated  in  another  state,  may  make  its  own 
decree  to  operate  as  such  conveyance.  Indeed,  it  is  well  settled  that 
the  decree  of  such  court  can  not  operate  to  transfer  title  to  lands  situated  in 
a  foreign  jurisdiction.  And  this  for  the  reason  that  judgment  or  decree 
in  rem  can  not  operate  beyond  the  limits  of  the  jurisdiction  or  state 
wherein  it  is  rendered.  And  if  a  decree  in  such  case  can  not  effect  the  trans- 
fer of  title  to  such  lands,  it  is  clear  that  a  deed  executed  by  a  master,  under  the 
direction  of  the  eourt,  can  have  no  greater  effect.  Watts  v.  Waddle,  6  Pet. 
389;  Page  r.  McKee,  3  W.  P.  D.  Bush,  135;  96  Am.  Dec.  201.  The 
masier^s  deed  to  Evans  must  therefore  be  regarded  as  a  nullity.  The  next  in- 
quiry then  is  as  to  the  force  and  effect  of  the  decree  rendered  by  the 
circuit  court  directing  the  heirs  of  Gen.  Scott  to  convey  the  land  in  Ohio 
to  Evans.  This  decree  was  in  personam,  and  bound  the  consciences  of 
those  against  w'hom  it  was  rendered.  In  it,  the  contract  of  their  an- 
cestor to  make  the  conveyance  was  merged.  The  fact  that  the  title 
which  had  descended  to  them  was  held  by  them  in  trust  for  Evans,  was 
thus  established  by  the  decree  of  a  court  of  competent  jurisdiction. 
Such  decree  is  record  evidence  of  that  fact,  and  also  of  the  fact  that  it 
became  and  was  their  duty  to  convey  the  legal  title  to  him.  The  per- 
formance of  that  duty  might  have  been  enforced  against  them  in  that  court  by  at- 
tachment as  for  contempt ;  and  the  fact  that  the  conveyance  was  not  made 
in  pursuance  of  the  order,  does  not  affect  the  validity  of  the  decree  in 
so  far  as  it  determined  the  equitable  rights  of  the  parties  in  the  land  in 
controversy.  In  our  judgment,  the  parties,  and  those  holding  under 
them  with  notice,  are  still  bound  thereby." 

According  to  this  decision  the  court  had  power  to  determine  the  in- 
terests of  the  parties  in  the  land,  but  could  not  do  the  very  thing  for 
which  such  an  action  is  brought,  viz.:  compel  the  transfer  of  the  title, 
except  by  attachment.  Undoubtedly  such  a  proceeding  affects  directly 
the  title  to  the  land  whether  the  successful  party  can  only  plead  it  as 
fixing  the  rights  of  the  parties  therein,  and  entitling  him  to  a  conveyance, 
or  as  one  actually  transferring  the  title.  And  if  the  court  can  pass  such 
a  decree  as  will  conclusively  determine  the  rights  of  the  parties  in  the 
land,  and  compel  the  parties  to  make  the  necessary  conveyance,  it  is  very 
difficult  to  see  why  it  may  not  accomplish  the  same  result  by  ordering  a 
conveyance  by  a  master  who  is  within  the  jurisdiction  of  the  court. 
But  notwithstanding  the  decided  cases  to  the  contrary,  it  still  seems 
that  the  proper  and  only  proper  place  to  bring  an  action  in  a  case  of  this 
kind  is  in  the  state  where  the  land  is  situated.  In  the  case  of  Watts  v. 
Waddle,  6  Pet.  389,  the  doctrine  laid  down  in  Burnley  v.  Stevenson  is 
declared. 


56  GENEUAL    PiUNCIPLES    AFfECTixNG    JURISDICTION. 

jurisdiction  to  order  a  foreclosure  and  sale  of  all  the  lands 
where  the  court  has  jurisdiction  of  the  persons  of  the  de- 
fendants.^ And,  as  jurisdiction  of  the  person  is  not  nec- 
essary to  the  foreclosure  of  a  morts^age,  it  is  not  necessary 
that  personal  service  on  the  defendants  be  obtained.  The 
decree  may  be  rendered  on  constructive  notice.' 

In  the  federal  courts,  where  jurisdiction  is  founded  on 
diversity  of  citizenship,  the  action  is  required  to  be  brought 
in  the  district  of  residence  of  either  the  plaintilf  or  the 
defendant.^ 

It  is  further  held,  in  this  connection,  that  a  railroad,  or 
telegraph  company,  chartered  either  by  the  state  or  by  the 
United  States,  is  an  inhabitant  of  every  state  in  which  it 
operates  its  lines  and  maintains  offices  for  the  transaction 
of  business,  within  the  meaning  of  the  statute  fixing  the 
jurisdiction  of  the  courts.*  But  it  is  the  established  doc- 
trine of  later  cases  that  a  corporation  incorporated  in  one 
state  only  can  not  be  compelled  to  answer  in  the  Circuit 
Court  of  the  United  States  in  another  state  in  which  it  has 
its  usual  place  of  business.^ 

A  corporation,  for  the  purposes  of  jurisdiction  in  the 
United  States  courts,  is  deemed  to  be  a  citizen  of  the  state 
creating  it,  and  no  averment  to  the  contrary  is  permitted.^ 
But  it  has  been  held  that  a  corporation  created  in  one  state 
and  doing  business  in  another,  with  the  permission  of  the 
latter,  is  also  a  citizen  of  the  state  in  which  it  does  busi- 
ness.^ A  different  rule  has  been  established,  however,  as 
affecting  the  right  to  sue  a  corporation  out  of  the  state  of 
its  incorporation.* 

>  McElrath  v.  The  Pittsburg,  etc.,  R.  R.  Co.,  55  Pa.  St.  189;  Muller  v. 
Dows,  94  U.  S.  449. 

Mnte,  sec.  12.  »  24  Stat,  at  L.,  p.  552,  c.  373. 

*  United  States  v.  Southern  Pac.  R.  Co.,  49  Fed.  Rep.  297. 

^Post,  sec.  43,  p.  321;  Shaw  v.  Quincy  Mining  Co.,  145  U.  S.  444;  12 
Sup.  Ct.  Rep.  935;  Southern  Pac.  Co.  v.  Denton,  146  U.  S.  202;  13  Sup. 
Ct.  Rep.  44. 

«  United  States  v.  Southern  Pac.  R.  Co.,  49  Fed.  Rop.  .302. 

'  Goodlett  V.  Railroad  Co.,  122  U.  S.  391 ;  7  Sup.  Ct.  Rep.  1254. 

In  United  States  v.  Southern  Pac.  R.  Co.,  49  Fed.  Rep.  303,  Mr.  Justice 
Harlan,  after  reviewing  the  authorities,  said  :  "  If  it  be  said  that  inhab- 


TERRITORIAL    JURISDICTION.  57 

A  corporation  created  by  the  laws  of  several  states  is  a 
citizen  of  either  for  the  purposes  of  jurisdiction.^ 

"Where  a  corporation  owns  property,  covered  by  mort- 
gages, in  different  states,  a  federal  court  in  one  district  can 
not,  by  the  appointment  of  a  receiver,  bring  the  entire' 
property  within  its  jurisdiction,  and  thereby  prevent  any 
of  the  mortgagees  from  foreclosing  their  mortgages  upon 
property  in  another  state,  in  the  federal  court  having  ju- 
risdiction in  the  latter  state,  nor  is  the  appointment  of  the 
receiver  binding  upon  the  latter  court  so  far  as  it  affects 
the  real  estate  within  its  jurisdiction.^ 

The  general  rule  is  that  no  court  has  power  to  appoint 
a  receiver  over  property  not  within  its  jurisdiction,  and 
that  such  an  appointment  can  not  give  it  extra-territorial 
jurisdiction  over  property.^ 

The  authority  of  a  receiver  is  co-extensive  only  with 
the  jurisdiction  of  the  court  by  whom  he  is  appointed, 
and  state  comity  does  not  require  one  state  to  permit  a  re- 
ceiver, appointed  by  a  court  of  another  state,  to  pursue 
legal  remedies  therein  to  the  detriment  of  its  citizens.* 

The  general  rule  on  the  subject  is,  that  a  receiver  ap- 
pointed in  one  state  has  no  right  to  sue,  as  such,  in  the 

itancy  in  a  state,  in  its  strict  legal  sense,  implies  a  permanent  fixed  resi- 
dence in  that  state,  the  answer  is  that  a  corporation  of  one  state,  operat- 
ing, by  agents,  a  railroad  or  telegraph  line  in  another  state,  with  its  con- 
sent, or  under  its  license,  may  be  regarded  as  permanently  identified 
with  the  business  and  people  of  the  latter  state,  and,  for  the  purposes 
of  its  business  there,  to  have  a  fixed  residence  within  its  limits ;  for  it 
may  not  unreasonably  be  assumed  that  it  will  exert  its  powers  there 
during  the  whole  of  its  corporate  existence,  or  so  long  as  it  is  profitable 
to  do  so.  It  does  there  just  what  it  would  do  if  it  had  received  its  char- 
ter from  that  state.  It  seems  to  the  court  that  a  corporation  of  a  state, 
or  a  corporation  of  the  United  States,  holding  such  close  relations  with 
the  business  and  ptjople  of  another  state,  may,  within  a  reasonable  in- 
terpretation of  the  act  of  1887,  be  deemed  an  '  inhabitant'  of  the  latter 
state  for  all  purposes  of  jurisdiction  in  personam  by  the  courts  held 
there ;  although  a  corporation  is.  and,  while  its  corporate  existence  lasts, 
must  remain  a  '  citizen'  only  of  the  state  which  gave  it  life." 

1  Railway  Co.  v.  Whitton,  13  Wall.  270;  Union  Trust  Co.  v.  Rochester 
&  P.  R.  Co.,  29  Fed.  Rep.  609. 

2  Atkins  V.  Wabash,  St.  L.  &  P.  Ry.  Co.,  29  Fed.  Rep.  172. 

^  Booth  V.  Clark,  17  How.  322;  Atkins  v.  Wabash,  St.  L.  &  P.  Ry.  Co., 
29  Fed.  Rep.  161. 

*Hunt  V.  Columbian  Ins.  Co.,  55  Me.  290;  92  Am.  Dec.  592;  Hum- 
phreys V.  Hopkins,  81  Cal.  551;  22  Pac.  Rep.  892;  Booth  v.  Clark,  17 
How'.  322,  330;  Day  v.  Postal  Tel.  Co.,  66  Md.  354;  7  Atl.  Rep.  608. 


58  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

courts  of  another  state,  but  that,  as  a  matter  of  comity, 
he  will  be  permitted  to  sue  so  long  as  the  exercise  of  the 
right  does  not  conflict  with  the  rights  of  creditors  or 
other  citizens  of  the  state  in  which  the  action  is  brought.' 
But  there  are  cases  holding  that  the  authority  of  a  court 
to  appoint  a  receiver  is  not  confined  to  the  property  within 
its  jurisdiction,  but  that  it  may  extend  the  authority  of 
the  receiver  to  property  in  another  state,  and  that,  as  a 
matter  of  comity,  his  right  to  the  control  of  the  property 
will  be  recognized  by  the  latter  state,  unless  the  exercise 
of  his  rights  conflicts  with  its  laws  or  the  rights  of  its 
citizens.^  And,  as  aftecting  corporations,  state  legislation 
may  be  such  as  to  bring  all  of  the  property  of  an  insolvent 
corporation  within  the  jurisdiction  of  the  courts  of  the 
state  where  the  corporation  is  doing  business,  for  the 
purpose  of  winding  up  its  affairs,  and  vest  in  receivers 
appointed,  the  right  to  extend  their  authority  to  property 
belonging  to  the  corporation,  in  another  state,  even  as 
against  creditors  there.^ 

So  it  is  held  that  where  property  has  come  into  the  pos- 
session of  a  receiver  under  his  appointment,  in  the  state 
where  he  is  appointed,  he  may  follow  the  same  into  an- 
other state  and  maintain  his  right  to  it  as  against  attach- 
ing: creditors  there* 

This,  however,  is  placed  upon  the  ground  that  by  taking 
possession  of  the  property  within  the  jurisdiction  of  his 
appointment  a  special  property  vested  in  him,  that,  being 
valid  there,  would  be  recognized  every-where.^ 

'  Humphreys  v.  Hopkins,  81  Cal.  551;  22  Pac.  Kep.  892;  Booth  v. 
Clark,  17  How.  322,  330 ;  Allen  v.  Caspari,  8  Me.  234 ;  6  Am.  St.  Rep. 
178,  185,  note;  Bank  v.  McLeod,  38  Ohio  St.  174;  Sohernheimer  v. 
Wheeler,  45  N.  J.  Eq.  G14;  18  Atl.  Rep.  234;  Boulware  v.  Davis,  90  Ala. 
207;  8  South.  Rep.  84;  Dyer  v.  Power,  14  N.  Y.  Sup.  873;  60  Hun,  583. 

2  Bank  v.  McLeod,  38  Ohio  St.,  183;  Hurd  v.  Elizabeth,  41  N.  J.  L.  1. 

3  Relfe  V.  Rundle,  103  U.  S.  222;  Parsons  v.  Charter  Oak  L.  Ins.  Co.,  31 
Fed.  Rep.  305. 

*  Chicago,  etc.,  R.  R.  Co.  v.  Keokuk,  etc..  Packet  Co.,  108  HI.  317 ;  48 
Am.  Rep.  557;  Pond  v.  Cook,  45  Conu.  12();  29  Am.  Rep.  668. 

*  But  see  on  this  point  Humphreys  v.  Hopkins,  81  Cal.  552;  22  Pac. 
Eep.  892. 


JURISDICTION    AS    TO    AMOUNT.  59 

16.  Jurisdiction  as  to  amount. — Courts  are  sometimes 
limited  in  their  jurisdiction  by  a  constitutional  or  stat- 
utory provision  that  they  shall  have  jurisdiction  where 
the  amount  in  controversy  shall  exceed,  or  shall  not  ex- 
ceed, a  certain  sum.^  Where  such  limitation  is  imposed,  a 
court  has  no  authority  to  entertain  a  case  not  within  the 
amount  fixed  by  law.  Where  the  jurisdiction  is  limited 
to  a  certain  sum  by  the  constitution  of  a  state  the  legisla- 
ture can  not  increase  such  jurisdiction.* 

The  question  as  to  what  shall  control  in  determining 
what  is  the  amount  in  controversy  frequently  arises.  The 
rule  usually  adopted  is,  that  the  amount  alleged  in  the 
pleading  of  the  plaintiff,  the  ad  damnum  clause,  controls.^ 

In  some  of  the  cases  the  prayer  for  relief  is  held  to  con- 
trol.* In  others,  that  parol  proof  will  be  heard  to  show 
the  actual  amount  in  controversy  and  oust  the  jurisdic- 
tion.^ 

The  courts  have  not  always  held  themselves  bound  by 
the  damages  alleged  in  the  complaint,  where  that  is  held 
to  be  the  test  of  jurisdiction.  Where  it  is  apparent  that 
the  amount  is  alleged  in  bad  faith  it  will  be  disregarded.^ 
Where  the  complaint  contains  more  than  one  count,  set- 
ting up  different  causes  of  action,  properly  joined,  the 
totals  of  all  the  counts  will  determine  the  question  of 
jurisdiction.'^  But  it  has  been  held  that  it  is  the  conclu- 
sion of  the  pleading  that  must  control,  and  tViat  where 
there  are  several  counts  showing  more  than  the  jurisdic- 
tional amount,  but  one  general  demand  for  damages  is 
made,  at  the  close  of  the  pleading,  for  an  amount  within 

'  12  Am.  &  Eng.  Enc.  of  Law,  283. 

'  Zander  v.  Coe,  5  Cal.  230;  Small  v.  Girvin,  6  Cal.  447;  post,  sec.  24. 

»  1  Work's  Ind.  Prac.  &  PI.,  sec.  30;  Short  v.  Scott,  6  Ind.  430;  Lord  v. 
Goldberg,  81  Cal.  599;  22  Pac.  Rep.  1126;  Greenbaum  v.  Martinez,  86 
Cal.  461 ;  25  Pac.  Rep.  12 ;  Stone  v.  Murphy,  2  la.  35 ;  Culbertson  t;.Tom- 
linson,  1  Mor.  (la.)  404;  Abbott  v.  Gatch,  13  Md.  314;   71  Am.  Dec.  643. 

*  Alexander  v.  Thompson,  38  Tex.  533. 

5  Collins  V.  Collins,  37  Pa.  St.  387,  390. 

«  Fix  V.  Sissung,  83  Mich.  561  ;  47  N.  W.  Rep.  340. 

'  Wetherill  i'.  Iniiabitants,  etc.,  5  Blkf.  (Ind.)  357;  Short  v.  Scott,  6 
Ind.  430. 


60  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

the  jurisdiction  of  the  court,  this  general  conclusion  con- 
trols and  the  court  has  jurisdiction.^ 

Where  an  account  is  filed  as  the  cause  of  action,  with- 
out a  pleading,  as  is  sometimes  allowed,  the  footing  of  the 
account  controls.^ 

Where  two  are  joined  as  defendants,  and  the  amount 
shown  to  he  due  from  one  of  them  is  large  enough  to 
give  jurisdiction,  it  has  been  held  that  in  the  absence  of 
any  objection  of  misjoinder  of  parties  the  jurisdiction  of 
the  court,  as  to  both  defendants,  will  be  maintained.^  But 
where  the  action  is  against  defendants,  properly  joined, 
but  who  are  severally  liable  for  different  amounts,  if  the 
sum  due  from  any  one  of  the  defendants  is  less  than  the 
jurisdictional  amount,  the  court  has  no  jurisdiction  of  the 
action,  as  against  him,  although  the  amount  claimed  from 
other  defendants  may  be  sufficient  to  give  jurisdiction  as 
to  them.^ 

It  has  been  held  that  where  the  complaint  alleges  an 
amount  of  damages  within  the  jurisdiction  of  the  court, 
but  the  verdict  of  the  jury  fixes  it  at  a  sum  below  the  ju- 
risdictional amount,  the  case  should  be  dismissed.^  So 
where  in  replevin  the  affidavit  states  the  value  within  the 
jurisdiction  of  the  court,  but  the  judgment  of  the  court  is 
to  the  contrary.^ 

Usually  statutory  provisions  fixing  the  amount  necessary 
to  give  jurisdiction  exclude  interest  and  costs.  This  is  the 
provision  of  the  statute  of  the  United  States  giving  juris- 
diction to  the  federal  courts;  and  in  an  action  on  coupon 
bonds   the   amount   due    on  the  coupons   is   interest  and 

1  Culley  V.  Laybrook,  8  Ind.  285. 

'  Mitchell  V.  Smith,  24  Ind.  252.  In  this  case  the  rule  was  adhered 
to  although  upon  a  calculation  it  appeared  that  the  footing  was  errone- 
ous, and  that  if  the  footing  had  been  correctly  stated  the  jurisdiction 
of  the  court  would  have  been  ousted. 

2  Cotter  V.  Parks,  80  Tex.  539  ;  16  S.  W.  Rep.  307. 

*  Thomas  i:  Anderson,  58  Cal.  99 ;  Derby  v.  Stevens,  64  Cal.  287 ;  Hy- 
man  v.  Coleman,  82  Cal.  650 ;  23  Pac.  Rep.  62. 
^  Louisville,  etc.,  R.  W.  Co.  v.  Johnson,  67  Ind.  546. 
«  Darling  v.  Conklin,  42  Wis.  478. 


JURISDICTION    AS    TO    AMOUNT.  61 

must  be  excluded  in  arriving  at  the  jurisdictional 
amount.' 

And  protest  fees  are  part  of  the  costs  and  not  of  the 
*'  matter  in  dispute."  ^ 

Where  a  note  provides  for  an  attorney's  fees  it  is  part 
of  the  indebtedness  and  not  interest  or  costs.^ 

In  some  of  the  states,  if  the  amount  of  recovery  is  be- 
low the  jurisdictional  amount,  the  judgment  will  be  set 
aside  and  the  action  dismissed  unless  the  amount  is  re- 
duced by  a  set- off.*  But  the  general  rule  is  that  the  re- 
covery of  an  amount  less  than  is  necessary  to  give  the 
court  jurisdiction  will  not  affect  the  jurisdiction  of  the 
court  to  render  and  enforce  judgment  for  such  amount,  the 
only  effect  of  such  a  result  being  to  cast  the  costs  of  the 
action  on  the  plaintiff.*  And  where  the  amount  found  due 
is  in  excess  of  the  jurisdictional  amount  the  excess  may 
be  remitted  and  judgment  taken  for  the  balance.*^ 

A  plaintiff  may  bring  his  action  for  less  than  is  due  him, 
remitting  the  balance,  and  thus  bring  his  case  within  the 
jurisdiction  of  an  inferior  court.^ 

This  right  to  waive  a  part  of  his  claim,  in  order  to 
give  jurisdiction,  is  sometimes  given  by  statute.^  And  if 
the  plaintiff  limits  his  ad  damnum  clause  to  an  amount 
within  the  jurisdiction  of  the  court,  this  of  itself  operates 
as  a  remitter  of  the  excess  over  that  sum.^    At  least  it  will 

'  Howard  v.  Bates  County,  4.3  Fed.  Rep.  276. 

2  Baker  v.  Howell,  44  Fed.  Rep.  113. 

3  Moore  v.  Foy,  1-5  S.  W.  Rep.  199. 

*  Camp  r.  Marion,  91  Ala.  240;  8  So.  Rep.  786. 

*  Jackson  v.  Whartenby,  5  Cal.  9.5;  Derby  v.  Stevens,  64  Cal.  287  ;  Ab- 
botts. Gatch,  13  Md.  314;  71  Am.  Dec.  643. 

6  Velvin  v.  Hall,  78  Ga.  136. 

'  Stewart  v.  Thompson,  8.5  Ga.  829 ;  11  S.  E.  Rep.  1030  ;  Fuller  v.  Sparks, 
39  Tex.  136  ;  Henipler  v.  Sclineider,  17  Mo.  2-58  ;  Denning  v.  Eckelkamj), 
30  Mo.  140;  Matlack  r.  Lare,  32  Mo.  262;  Litchfield  r.  Daniels,  1  Col. 
268  ;  Bennett  v.  IngersoU,  24  Wend.  113 ;  Dowditch  v.  Salisbury,  9  .Johns. 
366;  Raymond  v.  Strobel,  24  111.  114;  Grayson  v.  Williams,  12  Am.  Dec. 
570,  n.;  Koraski  r.  Foster,  20  111.  34. 

8  Quimby  v.  Hopping,  52  N.  J.  L.  117 ;  19  Atl.  Rep.  123. 

9  Litchfield  v.  Daniels,  1  Col.  268. 


62  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

be  presumed,  where  he  demands  less,  that  he  has  remitted 
the  excess.' 

A  running  account,  consisting  of  several  items,  can  not 
be  divided  to  give  jurisdiction.^ 

It  is  held  in  some  cases  that  where  "  the  sum  demanded  " 
determines  the  jurisdiction  a  remitter  of  a  part  of  the 
amount  demanded,  after  suit  brought,  will  not  give  juris- 
diction.^ And  in  others  it  is  held  that  where  a  remitter 
of  a  part  of  the  claim  actually  due  is  made  before  the  ac- 
tion is  brought,  and  the  suit  is  for  an  amount  within  the 
jurisdiction,  the  court  can  not  entertain  it.* 

A  plaintilf  may  give  the  court  jurisdiction  by  failing  to 
claim  interest  on  his  demand.^ 

In  the  federal  courts,  the  amount  necessary  to  give  the 
court  power  to  act  is  a  jurisdictional  fact  that  must  be 
properl}^  averred  in  the  complaint  or  bill,  or  the  court  will 
refuse  to  assume  jurisdiction  of  the  cause.® 

In  an  action  to  quiet  title  to  real  estate,  the  whole  value 
of  the  land  is  the  test  of  jurisdiction.^  So  in  an  action  to 
set  aside  fraudulent  conveyances,  the  amount  in  contro- 
versy is  the  value  of  the  land  alleged  to  have  been  fraudu- 
lently conveyed.^ 

'  Bowditch  V.  Salisbury,  9  Johns.  366. 

■■'  Grayson  v.  Williams,  Walker,  298  ;  12  Am.  Dec.  568. 

«  Peter  v.  Schlosser,  81  Pa.  St.  440. 

*  Collins  V.  Collins,  37  Pa.  St.  387,  390  ;  Bower  ?•.  McCormick,  73  Pa. 
St.  429;  Simpson  v.  Rawlings,  I  Scam.  (111.)  28;  Sands  v.  Delap,  1  Scam. 
( 111.)  167.  But  see  Evans  v.  Hall,  45  Pa.  St.  237,  in  which  it  was  held  that  a 
plaintiff  might  remit  or  fail  to  claim  a  part  of  the  interest  due  him,  and 
thus  bring  his  case  within  the  jurisdiction  of  the  court,  although,  in 
that  state,  interest  is  not  excluded  in  computing  the  amount  demanded. 
The  case  of  Simpson  v.  Rawlings,  1  Scam.  (111.)  28,  was  controlled  by  a 
direct  statutory  provision  making  the  whole  amount  of  the  contract 
sued  on  the  test.  This  rule  was  changed  by  later  statutes.  Raymond  v. 
Strobel,  24  III.  114. 

*  Simpson  v.  Updegraff,  1  Scam.  (111.)  594;  Bates  v.  Bulkley,  2  Gil.  389; 
Evans  v.  Hall,  45  Pa.  St.  237. 

®  Ante,  sec.  12:  Lehigh,  etc..  Iron  Co.  v.  New  Jersey,  etc.,  Iron  Co.,  43 
Fed.  Rep.  546;  Oleson  v.  Northern  Pac.  R.  Co.,  44  Fed.  Rep.  1. 

'  Lehigh,  etc.,  Iron  Co.  v.  New  Jersey,  etc.,  Iron  Co.,  43  Fed.  Rep.  545; 
Lovett  V.  Prentice,  44  Fed.  Rep.  459. 

*  Simon  v.  House,  46  Fed.  Rep.  317. 


JURISDICTION    AS    TO    AMOUNT.  63 

In  the  federal  courts,  the  value  of  the  matter  in  contro- 
versy, as  alleged  in  the  bill  or  complaint,  is  not  conclusive. 
It  may  be  shown  to  be  less  by  the  evidence  in  support  of 
a  plea  to  the  jurisdiction,  and  a  dismissal  secured.^ 

The  value  of  the  property  is  what  it  could  be  sold  for 
in  the  ordinary  course  of  business.^ 

A  successful  defense  as  to  a  part  of  the  claim,  whereby 
the  amount  is  reduced  below  the  jurisdictional  amount, 
does  not  oust  the  jurisdiction  of  the  court.^ 

Where,  in  a  creditor's  bill,  the  amount  claimed  by  the 
original  plaintiff  is  above  the  jurisdictional  amount,  other 
creditors  may  come  in  and  assert  their  claims,  although 
the  amount  due  them  would  not,  alone,  be  sufficient  to 
give  the  court  jurisdiction;  and  ^vhere  the  fund  to  be  dis- 
tributed, in  such  a  case,  exceeds  $5,000,  the  appellate  juris- 
diction of  the  supreme  court  of  the  United  States  is  not 
affected  by  the  fact  that  the  amounts  decreed  to  some  of 
the  creditors  is  less  than  that  sum.* 

The  fact  that  the  defendant  has  set  up  a  counter  claim, 
or  set-off",  does  not  affect  the  question  of  jurisdiction.  It 
is  the  amount  that  the  plaintiff  puts  in  controversy  that 
controls.^  The  general  rule  is  that  where  the  sum  claimed 
is  reduced  by  a  set-off,  below  the  jurisdictional  amount, 
the  power  of  the  court  to  render  judgment  is  not  thereby 
affected.^ 

A  receiver  of  a  national  bank  may  sue  in  the  United 
States  circuit  court,  without  regard  to  the  amount  in- 
volved, under  the  statute  authorizing  officers  of  the  United 
States  to  sue  in  the  federal  courts.^  And  the  same  rule 
applies  where  the  action  is  by  an  "  agent"   of  a  national 

^  Simon  v.  House,  4()  Fed.  Rep.  317. 

^  Berthold  v.  Hoskins,  38  Fed.  Rep.  772. 

'  Hardin  v.  Cass  County,  42  Fed.  Rep.  652. 

^Handley  v.  Stutz,  139  U.  S.  417;  11  Sup.  Ct.  Rep.  117. 

M^ord  V.  Goldberg,  81  Cal.  599;  22  Pac.  Rep.  1126;  Livingston  v. 
L'Engle,  27  Fla.  502;  8  Sou.  Rep.  728;  Gillespie  v.  Benson,  18  Cal.  410; 
Odell  V.  Culbert,  9  Watts  &  Serg.  66;  42  Am.  Dec.  317. 

«  Odell  V.  Culbert,  9  Watts  &  Serg.  66;  42  Am.  Dec.  317. 

'  Rev.  Stat.  U.  S.,  sec.  (>29,  sub.  3 ;  Armstrong  v.  Ettlesohn,  36  Fed. 
Rep.  209 ;  Yardley  v.  Dickson,  47  Fed.  Rep.  835. 


64  GENEEAL    PRINCIPLES    AFFECTING    JURISDICTION. 

bank,  appointed  under  the  national  banking  act  to  take 
the  pkice  of  the  receiver.' 

Tlie  limitation  as  to  amount  necessary  to  give  the  cir- 
cuit court  jurisdiction  does  not  apply  where  the  United 
States  is  plaintiff  or  petitioner.^ 

As  to  what  shall  be  considered  the  amount  in  contro- 
versy, as  affecting  the  jurisdiction  of  the  appellate  courts, 
the  authorities  are  not  uniform.  It  is  not  only  necessary 
that  a  sufficient  amount  to  give  jurisdiction  was  in  contro- 
versy in  the  court  below,  but  on  appeal  it  must  appear 
that  the  controversy  as  to  that  amount  is  continued  by  the 
appeal.^ 

In  some  cases  the  same  test  that  determines  the  right 
of  the  court  of  original  jurisdiction  to  act  in  the  case  is 
applied  in  the  appellate  court.  Thus,  it  is  held  that  where 
the  amount  in  controversy  in  a  justice's  court  is  the  sum 
demanded  in  the  complaint,  the  appellate  court,  whose 
jurisdiction  is  in  the  same  amount,  has  jurisdiction,  al- 
though the  amount  of  the  jiidgme7it,  if  regarded  as  the 
amount  in  controversy,  would  not  be  within  its  appellate 
jurisdiction.* 

Sometimes  it  is  held  that  the  amount  in  controversy  in 
the  appellate  court  is  the  difference  between  the  amount 
demanded  in  the  complaint  and  the  amount  of  the  judg- 
■  ment,  where  the  appeal  is  by  the  plaintiff  from  a  judgment 
in  his  favor  for  less  than  his  complaint  demands  f  and 
that  where  the  defendant  appeals,  the  amount  of  the  judg- 
ment controls.^ 

1  1  Sup.  Rev.  Stat.,  2d  ed.,  p.  107 ;  McConville  v.  Gilmour,  36  Fed. 
Rep.  277. 

2  United  States  v.  Shaw,  39  Fed.  Rep.  433. 

»  McCoy  V.  McCoy,  33  W.  Va.  60;  10  S.  E.  Rep.  19. 

*  Solomon  a.  Reese,  34  Cal.  28;  Dalshiel  v.  Slingerland,  60  Cal.  653. 

5  Votan  V.  Reese,  20  Cal.  90;  Skillman  v.  Lachman,  23  Cal.  198;  83 
Am.  Dec.  96. 

^  Votan  V.  Resse,  20  Cal.  90;  Ex  parte  Sweeney,  126  Ind.  583;  27  N. 
E.  Rep.  127,  129;  Louisville,  etc.,  R'y  Co.  v.  Coyle,  85  Ind.  516;  Bogart 
V.  The  City  of  New  Albany,  1  Ind.  38;  Overton  v.  Overton,  17  Ind.  226; 
Board  of  Commissioners  r.  Diebold  Safe  &  Lock  Co.,  133  U.  S.  473;  10 
Sup.  Ct.  Rep.  399 ;  District  of  Columbia  v.  Gannon,  130  U.  S.  227 ;  9  Sup. 


JURISDICTION    AS    TO    AMOUNT.  65 

There  may  be  an  appeal  by  a  plaintiif  from  a  judgment 
in  bis  favor  for  less  than  the  jurisdictional  amount.  In 
such  cases,  the  usual  test  of  the  amount  alleged  by  him 
in  his  complaint  must  be  applied.' 

Where  the  amount  of  the  verdict  is  below  the  jurisdic-- 
tional  amount,  but  by  reason  of  the  accumulation  of  in- 
terest thereon  the  judgment  is  above  it,  the  appellate 
court  has  jurisdiction.^  But  the  accumulation  of  interest 
on  the  judgment  can  not  give  the  supreme  court  jurisdic- 
tion where  the  judgment  has  been  rendered  in  the  trial 
court  for  less  than  the  jurisdictional  amount,  and  affirmed 
on  appeal  to  an  intermediate  court  of  appeal,  at  which 
time  the  accumulated  interest  has,  if  included,  increased 
the  actual  amount  then  due  on  the  judgment  to  a  sum 
sufficient  to  give  jurisdiction.^ 

But,  where  the  original  judgment  is  for  a  certain  sura, 
and  interest  from  the  date  of  the  judgment,  and,  at  the 
time  of  the  affirmance  below,  the  accumulated  interest 
has  increased  the  amount  to  a  sum  within  the  jurisdiction 
of  the  supreme  court,  the  latter  court  has  jurisdiction  of 
the  appeal.*  And  so,  if,  by  the  judgment  of  affirmance 
appealed  from,  interest  sufficient  to  increase  the  sum  to 
the  jurisdictional  amount  is  directed  to  be  added  to  the 
judgment  of  the  trial  court.^ 

Where  the  amount  in  controversy  does  not  appear  from 
the  record,  the  burden  of  showing  that  it  is  sufficient  to 
give  the  Supreme  Court  of  the  United  States  jurisdiction 
rests  upon  the  plaintiif  in  error.^  It  is  otherwise,  if  the 
court  below  has  found  the  value,^  or  where  the  appeal  has 

Ct.  Rep.  508;  Painter  v.  Guirl,  71  Ind.  240;  Sprinkle  v.  Toney,  73  Ind. 
592. 

1  Elliott's  App.  Pro.,  sec.  60. 

^  Board  of  Commissioners  v.  Diebold  Safe  &  Lock  Co.,  133  U.  S.  473; 
10  Sup.  Ct.  Rep.  399. 

*  District  of  Columbia  v.  Gannon,  130  U.  S.  227;  9  Sup.  Ct.  Rep.  508; 
Openshaw  v.  Utah  &  N.  R'y  Co.,  21  Pac.  Rep.  999;  Johnson  v.  Tully,  12 
Pac.  Rep.  567;  Elliott's  App.  Pro.,  sec.  61. 

*Zeckendorf  v.  Johnson,  123  U.  S.  617;  8  Sup.  Ct.  Rep.  261. 

5  District  of  Columbia  v.  Gannon,  130  U.  S.  227;  9  Sup.  Ct.  Rep.  508. 

6  AVilson  V.  Blair,  119  U.  S.  387 ;  7  Sup.  Ct.  Rep.  230. 

'  Zeigler  r.  Hopkins,  117  U.  S.  683;  6  Sup.  Ct.  Rep.  919. 
5 


66  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

been  allowed  by  the  court  below,  and  there  is  evidence  to 
sustain  the  right  of  appeal.^ 

It  is  held  in  some  of  the  cases  that  the  amount  in  con- 
troversy is  to  be  determined  "from  the  pleadings,  and  not 
from  the  formal  demand  for  judgment.'' ^  This  is  subject, 
however,  to  the  rule  above  stated  that,  where  the  judg- 
ment is  for  the  plaintiff  and  the  defendant  appeals,  the 
amount  of  the  judgment  controls.' 

Where  the  amount  of  the  judgment  controls,  the  plaint- 
iff may  remit  enough  of  his  verdict  to  bring  the  judgment 
below  the  amount  fixed,  and  this  deprives  the  appellate 
court  of  jurisdiction.*  But  this  can  not  be  done  after  the 
jurisdiction  of  the  supreme  court  has  attached.^  And  the 
trial  court  may  refuse  to  permit  the  remitter,  and  should 
do  so  if  it  is  apparent  that  the  object  is  to  prevent  an 
appeal.^ 

Again,  it  is  held  that,  where  the  appeal  is  by  the 
plaintiff,  the  amount  of  his  claim  is  the  amount  in  con- 
troversy.^ 

Generally  it  is  held  that  in  arriving  at  the  amount  in 
controversy  in  the  appellate  court,  the  demand  for  relief 
is  not  conclusive,  but  the  body  of  the  pleading  may  be 
looked  to  to  ascertain  the  amount.^ 

If  the  court  in  which  the  action  is  brought  has  not 
jurisdiction  of  the  amount  in  controversy,  the  appellate 
court   is    without    jurisdiction,    although    it   might   have 

1  Gage  V.  Pumpelly,  108  U.  S.  164 ;  2  Sup.  Ct.  Rep.  230. 

*  Ex  parte  Sweeney,  12ti  Ind.  oSo ;  27  N.  E.  Rep.  127  ;  Elliott's  App. 
Pro.,  sec  56. 

3  Ex  parte  Sweeney,  126  Ind.  583 ;  27  N.  E.  Rep.  127. 

*  First  National  Bank  v.  Redick,  110  U.  S.  22-4;  3  Sup.  Ct.  Rep.  640; 
Alabama,  etc..  Life  Ins.  Co.  v.  Nichols,  109  U.  S.  232;  3  Sup.  Ct.  Rep. 
120;  Elliott's  App.  Pro.,  sec.  62. 

*  New  York  Elevated  R.  Co.  v.  Fifth  Nat.  Bank,  118  U.  S.  608;  7  Sup. 
Ct.  Rep.  23. 

6 -Alabama,  etc..  Life  Ins.  Co.  v.  Nichols,  109  U.  S.  232;  3  Sup.  Ct.  Rep. 
120. 

'  Beach  v.  Livergood,  15  Ind.  496;  Morton  Gravel  Road  Co.  v.  Wysong, 
51  Ind.  4. 

«  Lee  V.  Watson,  1  Wall.  339 ;  Ex  parte  Sweeney,  126  Ind.  583 ;  27  N. 
E.  Rep.  129. 


I 


JURISDICTION    AS    TO    AMOUNT.  t)7 

taken  original  cognizance  of  the  case/  And  if  the  plaint- 
iff", after  the  cause  reaches  the  appellate  court  in  which 
the  case  is  to  be  tried  de  novo,  so  amends  his  complaint  as 
to  increase  the  amount  in  controversy  to  a  sum  in  excess 
of  the  jurisdictional  amount  in  the  court  below,  the  juris- 
diction of  the  appellate  court  is  thereby  ousted,  and  the 
cause  must  be  dismissed,^ 

It  is  lield  otherwise  in  some  cases,  but  they  seem  to  be 
founded  upon  the  peculiar  language  of  the  statutes  of  the 
states  in  which  they  were  rendered,  indicating  that  the 
appellate  court  should  try  and  dispose  of  the  cases  as  if 
they  had  been  originally  brought  before  them.^ 

It  will  be  observed  that  there  is  considerable  conflict 
and  uncertainty  in  the  decisions  relating  to  this  subject, 
particularly  as  to  the  means  and  manner  of  ascertaining 
the  amount  in  controversy,  in  attempting  to  determine 
whether  a  court  has  or  has  not  jurisdiction.  For  these 
reasons,  many  of  the  propositions  referred  to  have  not 
been  stated  to  be  so,  but  that  they  have  been  held  to  be 
so,  which  is  not  a  satisfactory  way  of  putting  it.  But 
there  are  certain  propositions  bearing  upon  and  affecting 
this  subject  of  jurisdiction  as  to  amount  that  may  be 
safely  stated,  in  conclusion,  as  established  by  the  clear 
weight  of  authority.  They  are  that  in  a  court  of  original 
jurisdiction  the  ad  damnum  clause  in  the  plaintiiF's  plead- 
ing fixes  the  amount  in  most  courts,  conclusively,  but  in 
some  only  prima  facie.  That  in  an  appellate  court  in 
which  the  cause  is  tried  de  novo  the  same  rule  prevails, 
but  where  the  appeal  is  to  a  court  of  errors,  if  the  plaint- 
iff appeals,  the  same  test  is  appHed,  and  if  the  appeal  is 
by  the  defendant,  the  amount  of  the  judgment  is  the 
amount  in   controversy.     In  the   federal  courts  the  ques- 

1  Klaise  v.  The  State,  27  Wis.  462 ;  Mays  r.  Dooley,  59  Ind.  287  ;  Pritch- 
ard  V.  Bartholomew,  45  Ind.  219 ;  Stringliara  v.  Board  of  Supervisors,  24 
Wis.  594;  Boyce  v.  Foote,  19  Wis.  215;  Berroth  r.  McElvain,  41  Kan. 
269;  20  Pac.  Rep.  850;  Levi  r.  Sherman,  6  Ark.  182;  42  Am.  Dec.  690; 
Horan  v.  Wahrenberger,  9  Tex.  313;  58  Am.  Dec.  145;  People  v.  Skin- 
ner, 13  111.  287 ;  54  Am.  Dec.  432. 

^  Pritchard  ?•.  Bartholomew,  45  Ind.  219. 

'  Dressier  v.  Davis,  12  Wis.  58,  and  cases  cited. 


68  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

tiou  as  to  the  amount  in  controversy  is  open  to  proof  even 
by  parol.  If  the  value  of  the  property  in  controversy  ap- 
pears from  the  record,  by  the  plaintiff's  pleading  or  other- 
wise, this  fixes  the  amount  prima  facie,  but  it  may  be  dis- 
proved by  parol  and  the  want  of  jurisdiction  established. 
If  the  appeal  is  by  the  defendant,  from  a  money  judg- 
ment, the  amount  is  fixed  by  the  judgment  itself,  as  in 
other  courts. 

17.  Exclusive  and  concurrent  .jurisdiction. — Exclusive 
and  concurrent  jurisdiction  have  been  defined.' 

Where  exclusive  jurisdiction  of  a  subject-matter  is  given 
to  one  court,  no  other  court  can  entertain  such  jurisdic- 
tion.^ If,  in  this  country,  such  jurisdiction  is  given  by 
the  constitution  of  the  United  States,  or  of  a  state,  the 
same  can  not  be  conferred  upon  any  other  court  by  legis- 
lative enactment.^  If,  however,  the  constitution  gives  a 
court  jurisdiction  over  a  subject-matter,  without  making 
it  exclusive,  the  legislature  may  confer  the  same  jurisdic- 
tion upon  another  court,  thereby  making  the  jurisdiction 
concurrent  in  the  two  courts.*  But  the  constitutional  ju- 
risdiction existing  in  the  first  court  can  not  be  taken  away 
by  statute.^ 

Where  jurisdiction  is  given  by  the  constitution,  it  may 
be  enlarged,  but  not  diminished,  by  the  legislature.^  But 
the  enlargement  of  jurisdiction  must  not  be  such  as  to 
change  the  fundamental  nature,  or  local  character,  of  the 
court.^ 

Where  two  or  more  courts  have  concurrent  jurisdiction, 
the  one  which  first  takes  cognizance  of  a  cause  has  the 
exclusive  right  to  entertain  and  exercise  such  jurisdiction, 

'  Ante,  sec.  9.  ^  Stanhart  v.  Sitley,  19  Atl.  Rep.  464. 

'  Harris  v.  Vanderveer,  21  N.  J.  Eq.  424;  Hutkoff  v.  Demorest,  103  N. 
Y.  377;  8  N.  E.  Rep.  -899;  In  re  Cleveland,  51  N.  J.  Law,  311 ;  17  Atl. 
Rep.  772 ;  post,  sec.  24. 

*  Courtwright  t).  Bear  R.  W.  &  M.  Co.,  30  Cal.  573;  Wells'  .lur.,  sec. 
154;  Berkowitz  v.  Lester,  121  111.  99;  11  N.  E.  Rep.  860;  Clepper  v.  The 
State,  4  Tex.  242  ;  post,  sec.  24. 

^  Post,  sec.  24.  ®  Harris  v.  Vanderveer,  21  N.  J.  Eq.  424. 

'  Landers  v.  Staten  Island  R.  R.  Co.,  53  N.  Y.  450. 


EXCLUSIVE    AND    CONCURRENT     JURISDICTION.  69 

to  the  final  determination  of  the  action   and  the  enforce- 
ment of  its  judgment  or  decree.^ 

The  rule  is  that  one  court  of  concurrent  jurisdiction  has 
no  power  to  interfere  with  the  judgments  or  decrees  of - 
other  courts  of  the  same  jurisdiction.^  Therefore,  one 
court  of  co-ordinate  jurisdiction  will  not  restrain,  by  in- 
junction, proceedings  previously  instituted  in  another 
court.^ 

And  the  rule  extends  to  the  processes  of  the  court, 
whether  mesne  or  final.*  But  the  protection  thus  extended 
to  an  ofijcer  acting  under  process  does  not  protect  him 
from  an  action  of  trespass  in  another  court,  where  he  goes 
beyond  the  command  of  the  writ  with  respect  to  the  per- 
son to  be  affected  or  the  property  to  be  seized.  Accord- 
ingly, it  is  held  that  an  officer  of  a  United  States  court 
who  levies  a  writ  upon  the  property  of  one  against  whom 
the  writ  does  not  run,  or  upon  property  which  is  not 
liable  to  the  writ,  may  be  sued  in  a  state  court  for  tres- 
pass.^ It  is  held,  however,  by  the  supreme  court  of  the 
United  States,  that  where  property,  not  named  in  the  writ, 
is  wrongfully  seized,  the  owner  can  not  obtain  possession 
of  it  by  resort  to  the  courts  of  another  jurisdiction.® 

But  while  the  owner  of  the  ^jroperty  can  not  obtain 
possession  thereof  by  resorting  to  a  state  court,  he  may 

>  Wells'  Jur.,  sec.  156;  Ober  v.  Gallagher,  93  U.  S.  199;  Merrill  v. 
Lake,  16  Ohio,  373 ;  47  Am.  Dec.  377 ;  Booth  v.  Ableman,  16  Wis.  460 ;  84 
Am.  Dec.  711;  Taylor  v.  City  of  Fort  Wayne,  47  Ind.  274;  Ex  parte 
Bushnell,  8  Ohio  St.  599;  Powers  v.  City  Council  of  Springfield,  116 
Mass.  84 ;  Clepper  r.  The  State,  4  Tex.  242. 

''  Anthony  v.  Dunlap,  8  Cal.  26;  Rickett  v.  Johnson,  Id.  34;  Ex  parte 
Booth,  3  Wis.  145;  Uhlfelder  v.  Levy,  9  Cal.  608;  Mail  v.  Maxwell,  107 
111.  554 ;  Dodge  v.  Northrop,  85  Mich.  243 ;  48  N.  AV.  Rep.  505. 

*  Platto  V.  Deuster,  22  Wis.  482 ;  Uhlfelder  v.  Levy,  9  Cal.  608 ;  Hock- 
stacker  V.  Levy,  11  Cal.  76. 

*  Buck  V.  Colbath,  3  Wall.  334;  Taylor  v.  Carryl,-20  How.  583;  Judd  v. 
Bankers  &  Merchants  Tel.  Co.,  31  Fed.  Rep.  182;  Gilbert  v.  Renner,  95 
Mo.  151 ;  7  S.  W.  Rep.  479 ;  Mellier  v.  Bartlett,  89  Mo.  134 ;  1  S.  W. 
Rep.  220. 

5  Buck  V.  Colbath,  3  Wall.  334. 

«  Freeman  v.  Howe,  24  How.  450;  Buck  v.  Colbath,  3  Wall.  334. 
This  doctrine  has  not  been  accepted  without  dissent.     A  different  con- 
clusion was  reached  by  the  supreme  court  of  Massachusetts  in  the  case 


70  GENERAL   PRINCIPLES   AFFECTING   JURISDICTION. 

prosecute  the  officer  making  the  wrongful  seizure,  in  such 
court,  and  the  fact  that  the  writ  under  which  he  assumed 
to  act  was  issued  out  of  a  federal  court  is  no  defense. 
The  right  to  proceed  against  the  officer  in  trespass  does 
not  interfere  with  the  property  in  the  possession  of  the 
federal  court,  and,  therefore,  the  reason  for  denying  the 

of  Freeman  v.  Howe  (Howe  v.  Freeman,  80  Mass.  566),  and  this  con- 
clusion is  supported  by  the  opinion  of  Chancellor  Kent. 

"  If  the  officer  of  the  United  States  who  seizes,  or  the  court  which 
awards  the  process  to  seize,  has  jurisdiction  of  the  subject-matter,  then 
the  inquiry  into  the  validity  of  the  seizure  belongs  exclusively  to  the 
federal  courts.  But  if  there  be  no  jurisdiction  in  the  instance  in  which 
it  is  asserted,  as  if  a  marshal  of  the  United  States,  under  an  execution 
in  favor  of  the  United  States  against  A,  should  seize  the  person  or  prop- 
erty of  B,  then  the  state  courts  have  jurisdiction  to  protect  the  person 
and  the  property  so  illegally  invaded."     1  Kent's  Com.  410. 

In  the  later  case  of  Buck  v.  Colbath,  the  supreme  court  say :  "  Upon 
the  merits  of  the  case  the  plaintiff  in  error  relies  mainly  on  the  case  of 
Freeman  v.  Howe,  24  How.  450,  decided  by  this  court,  and  upon  the 
opinion  by  which  the  court  sustained  the  decision.  That  was  a  case 
like  this  in  every  particular,  with  the  single  exception  that  when  the 
marshal  had  levied  the  writ  of  attachment  on  certam  property,  a  writ 
of  replevin  was  instituted  against  him  in  the  state  court,  and  the  prop- 
erty taken  out  of  his  possession,  while  in  the  present  case  the  officer  is 
sued  in  trespass  for  the  wrongful  seizure.  In  that  case  it  was  held,  that 
although  the  writ  of  attachment  had  been  wrongfully  levied  upon  the 
property  not  named  in  the  writ,  the  rightful  owner  could  not  obtain 
possession  of  it  by  resort  to  the  courts  of  another  jurisdiction.  It  must 
be  confessed  that  this  decision  took  the  profession,  generally,  by  sur- 
prise, overruling,  as  it  did,  the  unanimous  opinion  of  the  supreme  court 
of  Massachusetts — a  court  whose  opinions  are  always  entitled  to  great 
consideration— as  well  as  the  opinion  of  Chancellor  Kent,  as  expressed 
in  his  Commentaries,  vol.  1,  p.  410.  We  are,  however  entirely  satisfied 
with  it  and  with  the  principle  upon  which  it  is  founded ;  a  principle 
which  is  essential  to  the  dignity  and  just  authority  of  every  court,  and 
to  the  comity  which  should  regulate  the  relations  between  all  courts  of 
concurrent  jurisdiction.  That  principle  is,  that  whenever  property  has 
been  seized  by  an  officer  of  the  court  by  virtue  of  its  process,  the  prop- 
erty is  to  be  considered  as  in  the  custody  of  the  court,  and  under  its 
control  for  the  time  being ;  and  that  no  other  court  has  a  right  to  inter- 
fere with  that  possession,  unless  it  be  some  court  which  may  have  a 
direct  supervisory  control  over  the  court  whose  process  has  first  taken 
possession,  or  some  superior  jurisdiction  in  the  premises.  This  is  the 
principle  upon  which  the  decision  of  this  court  rested  in  Taylor  v.  Car- 
ryl,  20  How.  583,  and  Hagan  v.  Lucas,  10  Pet.  400,  both  of  which  assert 
substantiallv  the  same  doctrine." 


EXCLUSIVE    AND    CONCURRENT    JURISDICTION.  71 

owner  the  right  to  recover  his  property  in  the  state  court 
does  not  apply. ^ 

Where  property  in  the  hands  of  an  officer  of  a  federal 
court  has  been  taken  out  of  his  possession  in  an  action  of 
replevin  in  a  state  court,  and  delivered  to  the  alleged 
owner,  the  court  may  and  should  so  far  exercise  jurisdic- 
tion as  to  order  the  return  of  the  property  to  the  officer 
upon  the  refusal  of  the  court  to  proceed  with  the  case." 

If  the  court  first  assuming  jurisdiction  has  not  the 
power  to  carry  the  cause  to  a  final  and  appropriate  con- 
clusion, or  grant  the  necessary  relief  lo  either  of  the  par- 
ties, the  aid  of  another  court,  having  such  power,  may  be 
called  for,  and  its  jurisdiction  may  be  properly  exercised.'' 

This  exercise  of  jurisdiction  by  two  courts  of  concur- 
rent jurisdiction  frequently  occurs  where  a  given  cause  of 
action  entitles  the  injured  party  to  both  a  legal  and  an 
equitable  remedy,  or  the  defendant  has  a  defense  that  can 
not  avail  him  except  in  a  court  of  equity,  and  a  court  of 
law  has  first  taken  cognizance  of  the  case  and  is  unable  to 
afibrd  the  equitable  relief  necessary  to  the  protection  of 
the  party's  rights  and  interests.  Here  the  two  courts 
have  concurrent  jurisdiction  of  the  subject-matter,  but 
the  relief  that  may  be  administered  by  the  two  courts  is 
difl^erent.  In  such  cases  both  the  common  law  and  equity 
courts  may  exercise  their  appropriate  functions  in  the 
same  case  in  order  to  afibrd  the  litigant  full  and  adequate 
relief.* 

'  In  the  case  of  Buck  v.  Colbath,  3  Wall.  334,  the  court,  after  approving 
the  doctrine  that  replevin  would  not  lie  in  the  state  court,  and  stating 
the  principle  upon  which  the  doctrine  rests,  said :  "  It  is  obvious  that  the 
action  of  trespass  against  the  marshal,  in  the  case  before  us,  does  not 
interfere  with  the  principle  thus  laid  down  and  limited.  The  federal 
court  could  proceed  to  render  its  judgment  in  the  attachment  suit, 
could  sell  and  deliver  the  property  attached,  and  have  its  execution  sat- 
isfied without  any  disturbance  of  its  proceedings,  or  any  contempt  of  its 
process,  while,  at  the  same  time,  the  state  court  could  proceed  to  deter- 
mine the  questions  before  it  involved  in  the  suit  against  the  marshal 
without  interfering  with  the  possession  of  the  property  in  dispute. " 

■'  Booth  V.  Ableman,  16  Wis.  460;  84  Am.  Dec.  711. 

'  Anthony  v.  Dunlap,  8  Cal.  26;  Ackerly  v.  Vilas,  lo  Wis.  401. 

*  Uhlfelder  v.  Levy,  9  Cal.  607;  Akerly  r.  Vilas,  15  Wis.  401. 


72  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

For  example,  in  an  action  at  law  the  necessity  for  an  in- 
junction may  arise,  which  can  only  be  had  in  a  court  of 
equity.  In  such  a  case  a  court  of  equity,  having  concur- 
rent jurisdiction  with  the  law  court,  may  exercise  its  right 
to  issue  such  injunction,  or  render  other  equitable  reme- 
dies necessary  to  preserve  the  rights  of  the  party,  and 
render  his  judgment  at  law  eftective.  And  in  order  to 
protect  the  rights  of  a  party  that  can  only  be  enforced  in 
a  court  of  equity,  such  court  may  restrain  proceedings  in 
the  cause  in  a  court  of  law  by  injunction.^ 

This  may  be  done,  also,  where  a  suit  is  pending  in  a 
court  of  equity,  and  the  party  institutes  a  new  suit  in  a 
court  of  law  on  the  ground  that  the  bringing  of  the  second 
suit  is  a  contempt  of  the  court  first  taking  jurisdiction.^ 
It  must  not  be  understood,  however,  that  the  court  in 
which  the  action  is  brought  can  be  enjoined.  The  injunc- 
tion runs  against  the  party  and  not  the  court.^ 

The  general  rule  is  that  in  actions  in  rem.,  the  court,  un- 
der whose  process  the  property  is  seized,  has  exclusive 
jurisdiction.*  But  where,  by  statute,  jurisdiction  of  the 
thing  may  be  acquired  by  service  of  process  on  the  owner 
or  other  person,  such  jurisdiction  is  not  necessarily  exclu- 
sive, but  may  exist  in  several  courts  at  the  same  time  and 
over  the  same  subject.  If,  however,  at  any  stage  of  the 
proceedings,  any  one  of  the  courts  of  concurrent  jurisdic- 
tion has  made  an  actual  seizure  of  the  property  under 
mesne  or  final  process,  such  court  has  exclusive  power 
over  its  disposal  and  the  distribution  of  the  fund  arising 
therefrom.* 

Where  a  new  right  is  created  by  statute  and  a  particu- 
lar remedy  prescribed,  and  the  statute  provides  that  this 
remedy  must  be  pursued  in  a  particular  court,  the  juris- 
diction of  such  court  to  afford  the  remedy  provided  for  is 

*  Ackerly  v.  Vilas,  15  Wis.  401 ;  Ex  parte  City  Bank  of  New  Orleans,  3 
How.  292. 

^  Blanchard  v.  Stone,  16  Vt.  234 ;  Conover  r.  Mayor,  etc.,  of  New  York, 
25  Barb.  513. 
'  Ex  parte  The  City  Bank  of  New  Orleans,  3  How.  292. 

*  Averill  v.  Steamer  Hartford.  2  Cal.  308. 


EXCLUSIVE    AND    CONCURRENT    JURISDICTION.  7S 

exclusive.^  But  the  jurisdiction  of  the  federal  courts, 
given  by  the  constitution,  can  not  be  taken  away  by  a 
state  statute  creating  a  right  and  providing  that  litiga- 
tion with  reference  thereto  shall  be  carried  on  in  a  certain 
state  court. ^ 

An  action  brought  against  a  vessel,  by  name,  calls  for 
the  exercise  of  admiralty  jurisdiction,  which  belongs  ex- 
clusively to  the  United  States  district  courts,  and  can  not 
be  exercised  by  a  state  court.  This  jurisdiction  of  the 
federal  courts  is  not  contined  to  tide  waters,  but  extends 
to  other  navigable  lakes  and  streams.^  But  the  right  to  a 
common  law  remedy,  where  the  common  law  is  competent 
to  give  it,  is  excepted,  and  such  common  law  remedy  may 
be  enforced  in  the  state  courts.^ 

The  peculiar  relations  existing  between  the  federal  and 
state  courts  give  them  concurrent  jurisdiction  in  many 
cases,  and  authorize  the  transfer  from  the  state  to  the 
federal  courts  upon  application  made  by  the  proper  party .^ 
In  this  way  a  cause  pending  in  a  court  of  concurrent  juris- 
diction may,  upon  the  demand  of  one  of  the  parties,  be 
transferred  and  vested  in  another  court  of  co-ordinate 
jurisdiction.^  So  the  jurisdiction  of  a  court  may  be  ousted 
by  the  creation  of  a  new  court  vested  with  power  to  hear 
and  determine  matters  formerly  within  its  jurisdiction.'^ 
The  same  act  may  constitute  an  oiSfense  against  the  United 

1  Reed  v.  Omnibus  R.  R.  Co.,  33  Cal.  216;  Spencer  Creek  Water  Co.  v. 
Vallejo,  48  Cal.  70. 

2  Mercer  r.  Cowles,  7  Wall.  118;  Lincoln  County  v.  Luning,  133  U.  S. 
529;  10  Sup.  Ct.  Rep.  363:  Vincent  v.  Lincoln  Co.,  30  Fed.  Rep.  749. 

*  Rev.  Stat.  U.  S.,  sec.  563,  sub.  8;  Taylor  r.  Harnmons,  4  Wall.  411; 
Genesee  Chief,  12  How.  443 ;  Jackson  r.  Magnolia,  20  How.  296;  Stearns 
V.  Trevor,  4  Wall.  555;  Insurance  Co.  v.  Dunham,  11  Wall.  1;  The  Bel- 
fast V.  Boon,  74  U.  S.  624;    Keating  v.  Spink,  62  Am.  Dec.  234,  note. 

*  Rev.  Stat.  U.  S.,  sec.  563,  sub.  8;  Keating  v.  Spink,  3  0.  St.  105;  62 
Am.  Dec.  214. 

^  Robinson  v.  National  Bank,  81  N.  Y.  385 ;  12  Am.  &  Eng.  Enc.  of 
Law,  295. 

*  Taylor  v.  Hammons,  4  Wall.  411. 
'  Post,  sec.  24. 

Thus  the  constitution  of  California  provides  that  the  superior  courts 
shall  have  jurisdiction  in  all  criminal  cases  amounting  to  felony,  and 


74  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

States,  and  oue  of  the  states,  and  the  guilty  party  may  be 
prosecuted  hi  the  courts  of  either.^ 

18.  Assistant  jurisdiction. — Assistant  jurisdiction  is 
that  which  is  exercised  by  a  court  of  chancery  in  aid  of  a 
court  of  law  by  way  of  enforcing  discovery,  by  the  exam- 
ination of  witnesses  de  bene  esse,  or  out  of  the  jurisdiction 
of  the  court,  by  the  perpetuation  of  the  testimony  of  wit- 
nesses and  the  like.^  It  results  from  the  inability  of  a 
court  of  law  to  exercise  it.  It  belongs  to  that  class  of 
cases  before  referred  to  ;^  in  which  a  party  litigating  a 
purely  legal  question,  in  a  common  law  court,  may  call  in 
the  aid  of  a  court  of  chancery  to  assist  him  in  getting  his 
case  properly  before  the  law  court,  and  in  enforcing  his 
judgment  when  recovered.  It  is  not,  properly,  concurrent 
jurisdiction,  as  the  power  to  be  exercised,  and  the  object 
to  be  attained  is  different.  The  two  courts  exercise 
separate  powers  and  functions,  and  the  combined  exercise 
of  jurisdiction  by  both  has  a  bearing  upon  and  results  in 
the  final  judgment,  but  the  judgment  is  that  of  the  law 
court  alone.  This  assistant  jurisdiction  is  of  much  less 
consequence  at  the  present  day  than  it  was  formerly,  and 
for  various  reasons.  In  those  states  in  which  codes  liave 
been  adopted,  the  distinction  between  common  law  and 
equity  practice  and  procedure  has  been  abolished,  and 
courts  of  general  jurisdiction  exercise  both  common  law 
and   equity  powers   and  functions,  and  may  afford  every 

cases  of  misdemeanor  not  otherwise  provided  for.  Const.  Cal.,  art.  6,  sec. 
5.  An  act  was  passed  creating  a  police  judge's  court,  and  giving  it  jur- 
isdiction in  certain  misdemeanors.  It  was  lield  tliat  by  this  act  the  mis- 
demeanors mentioned  became  "  otherwise  provided  for,"  and  that  the 
jurisdiction  in  such  cases  was  taken  from  the  superior  courts  and  vested 
exclusively  in  the  police  judge's  courts.  Green  v.  Superior  Court,  78 
Cal.  556;  21  Pac.  Rep.  307,  541;  Ex  parte  Wallingford,  60  Cal.  10:5; 
Gaflford  v.  Bush,  Id.  149. 

'  Cross  V.  State  of  North  Carolina,  132  U.  S.  131 ;  10  Sup.  Ct.  Rep.  47; 
People  V.  McDonnell,  80  Cal.  285;  22  Pac.  Rep.  190. 

'^  Ante,  sec.  9 ;  Bouv.  Law  Die,  title,  Jurisdiction ;  12  Am.  &  Eng.  Enc. 
of  Law,  251 ;  Skinner  v.  Judson,  8  Conn.  528  ;  21  Am,  Dec.  691 ;  Hop- 
kins V.  United  N.  J.  R.  R.  &  Canal  Co.,  27  N.  J.  Eq.  286. 

^  Ante,  sec.  17. 


ASSISTANT    JURISDICTION.  75 

remedy  that  could  formerly  be  given  by  both  courts  of 
law  and  equity.  For  this  reason  the  aid  of  another  court 
for  any  of  the  purposes  above  mentioned,  is  not  needed, 
and  assistant  jurisdiction  is  entirely  unknown.  Besides, 
not  only  in  the  code  states,  but  in  others,  parties  are  now 
made  competent  witnesses,  and  provision  is  made,  usually, 
for  taking  their  testimony,  before  or  at  the  trial  of  the 
cause,  which  renders  a  discovery  unnecessary.'  So  with 
reference  to  the  production  of  documents.  It  was  within 
the  power  of  a  court  of  equity  to  compel  the  production 
of  documents,  as  an  exercise  of  its  right  to  enforce  a  dis- 
covery, for  the  inspection  and  use  of  the  opposite  party .^ 
E^ow,  a  much  more  simple  mode  of  compelling  such  pro- 
duction is  provided  by  statute.  This  is  usually  done  by  a 
mere  motion  in  the  court  in  which  the  action  is  pending, 
8ui)ported  by  the  proper  affidavit,  or  by  a  subpena  duces 
teciim.^ 

Similar  provisions  for  the  perpetuation  of  testimony, 
without  the  interposition  of  either  court  or  judge,  are 
sometimes  made.  And  in  some  of  the  states  a  party  to 
the  action  may,  under  an  order  of  the  court,  be  examined 
on  written  interrogatories  before  the  trial.*  And  the  tes- 
timony of  witnesses,  out  of  the  jurisdiction  of  the  court, 
may  be  taken  by  depositions,  whether  the  witness  be  in 
this  or  a  foreign  country. 

In  some  of  the  states  provision  is  made  for  compelling 
discovery  by  the  filing  of  interrogatories,  in  connection 
with  a  party's  pleading,  to  be  answered  by  the  opposite 
party  under  oath.^ 

The  statutory  proceedings,  known  as  proceedings  sup- 
plementary to  execution,  have  superseded,  to  a  large  ex- 

•  Brown  v.  Swann,  10  Pet.  497 ;  Rioppelle  v.  Doeliner,  26  Mich.  102. 
"  Adams'  Eq.,  p.  18. 

»  Rev.  Stat.  U.  S.,  sees.  724,  809 ;  Ex  parte  Boyd,  105  U.  S.  647;  Paton 
V.  Majors.  46  Fed.  Rep.  210;  Uuion  Pac.  Ry.  Co.  v.  Botsford,  141  U.  S. 
250;  11  Sup.  Ct.  Rep.  1000. 

*  Blossom  V.  Luddington,  32  Wis.  212. 

^  Jacksonville,  etc.,  Ry.  Co.  v.  Peninsular  Land,  etc.,  Co.,  27  Fla.  157; 
9  Sou.  Rep.  661  ;  Wilson  v.  Webber,  2  Gray,  558;  2  Work's  Iiul.  Pr.  & 
PL,  sec.  1233. 


76  QFNERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

tent,  the  equitable  jurisdiction  afforded  by  the  courts  of 
chancery  in  aid  of  the  enforcement  of  a  common  law 
judgment  by  the  discovery  of  property  subject  to  execu- 
tion.^ But  while  this  jurisdiction  has  become  of  much 
less  consequence  than  formerly,  it  still  exists,  and  may  be 
called  into  exercise  in  a  proper  case  where  the  law  and 
equity  courts  are  still  maintained  as  separate  and  distinct 
organizations.^  But  the  essence  of  this  jurisdiction  is  that 
it  is  in  aid  of  the  legal  right  of  a  party,  and  it  will  not  be 
exercised  where  the  law  court  is  competent  to  grant  the 
same  relief.^  Therefore  it  is  held  that  where  provision  is 
made  for  proceedings  supplementary,  in  a  court  of  law, 
for  the  purpose  of  reaching  property  of  a  defendant  sub- 
ject to  execution,  a  court  of  chancery  will  not  entertain 
jurisdiction  for  the  same  purpose.* 

1  Ex  parte  Boyd,  105  U.  S.  647. 

2  Adams'  Eq.  1 ;  Shotwell's  Adm'x  v.  Smith,  20  N.  J.  Eq.  79. 

Iq  Shotwell's  Adm'x  v.  Smith,  supra,  the  chancellor  said  :  "  Courts  of 
equity  will  always  compel  discovery  in  aid  of  prosecuting  or  defending 
suits  at  law,  and  to  make  such  discovery  of  use  on  the  trial  at  law,  will 
restrain  the  suit  from  proceeding  until  the  discovery  is  had.  And  this 
ancient  and  well  settled  jurisdiction  is  not  taken  away  by  the  fact  that 
courts  of  law  have  been  clothed  with  powers  to  compel  discovery  in  such 
cases  by  the  oath  of  the  complainant.  Besides,  the  power  given  to  courts 
of  law  is  not  so  complete  and  ample  as  the  power  to  compel  discovery  in 
chancery.  At  law,  the  plaintiflF  can  not  be  compelled  actually  to  answer  ; 
the  only  penalty  is  that  the  court  may  stop  his  proceeding  in  the  suit. 
On  this  ground  the  complainant  is  entitled  to  maintain  the  injunctions 
until  answers  are  put  in." 

3  Story's  Eq.  Jur.,  sec.  1495;  Ex  parte  Boyd,  105  U.  S.  657;  Gelston  v. 
Hoyt,  1  Johns.  Ch.  547  ;  United  States  v.  McLaughlin,  24  Fed.  Rep.  825 ; 
RindskoflF  v.  Platto,  29  Fed.  Rep.  130  ;  Roippelle  v.  Doeliner,  26  Mich.  102. 

^  Thus,  in  Ex  parte  Boyd,  105  U.  S.  657,  the  Supreme  Court  of  the 
the  United  States  said :  "  Now,  it  is  of  the  essence  of  the  jurisdiction  of 
courts  of  equity,  in  bills  of  discovery  merely,  that  it  is  in  aid  of  the  legal 
right ;  and  it  is  a  fundamental  rule,  prescribed  for  the  exercise  of  that 
jurisdiction,  in  the  words  of  Story  (Eq.  Jur.,  sec.  1495),  that  'courts  of 
equity  will  not  entertain  a  bill  for  discovery  to  assist  a  suit  in  another 
court,  if  the  latter  is,  of  itself,  competent  to  grant  the  same  relief ;  for 
in  such  a  case  the  proper  exercise  of  the  jurisdiction  should  be  left  to 
the  functionaries  of  the  court  where  the  suit  is  depending.'  It  follows, 
then,  that,  although  at  one  time  courts  of  equity  would  entertain  bills 
of  discovery  in  aid  of- executions  at  law,  because  courts  of  law  were  not 
armed  with  adequate  powers  to  execute  their  own  process,  yet  the  mo- 


ASSISTANT    JURISDICTIOX.  77 

It  will  be  seen   that  the  decided  cases  are  not  in  entire 

ment  those  powers  were  sufficiently  enlarged,  by  competent  authority, 
to  accomplish  the  same  beneficial  result,  the  jurisdiction  in  equity,  if 
it  did  not  cease  as  unwarranted,  would,  at  least,  become  inoperative 
and  obsolete.  A  bill  in  equity  to  compel  disclosures  from  a  plaintifTor^ 
a  defendant,  of  matters  of  fact  peculiarly  within  his  knowledge,  essen- 
tial to  the  maintenance  of  the  legal  rights  of  either  in  a  pending  suit 
at  law,  would  scarcely  be  resorted  to,  unless  under  special  circum- 
stances, now,  when  parties  are  competent  witnesses,  and  can  be  com- 
pelled to  answer,  under  oath,  all  relevant  interrogatories  properly  ex- 
hibited ;  nor  to  compel  the  production  of  books,  deeds,  or  other  docu- 
ments, important  as  instruments  of  evidence,  when  the  court  of  law, 
in  which  the  suit  is  pending,  is  authorized  by  summary  proceedings  to 
enforce  the  same  right. 

"  But  even  conceding  that  such  enlargements  of  the  powers  of  courts 
of  law  do  not  deprive  courts  of  equity  of  jurisdiction  theretofore 
ercised,  no  one  has  ever  supposed  that  they  were  illegitimate  intrusions 
upon  the  exclusive  domain  of  equity,  or  produced  any  confusion  of 
boundaries  between  the  two  systems.  No  one  has  ever  questioned  the 
authority  of  congress  to  make  parties  to  a  suit  competent  witnesses,  or 
to  confer  upon  courts  of  law  power  to  compel  the  production  of  books 
and  papers,  because  discovery  was  an  ancient  head  of  equitable  juris- 
diction. It  is  the  very  office  of  the  principle  of  equity  to  supply  de- 
fects in  the  law,  and  it  is  not  to  be  regarded  as  anomalous  that  the 
technical  law  should,  in  the  course  of  its  necessary  development,  incor- 
porate into  its  own  organization  improvements  in  procedure,  first  intro- 
duced as  equitable  remedies.  It  is  this  very  capacity  of  parallel  growth 
that  constitutes  and  perpetuates  the  harmonious  co-existence  of  the  two 
departments  of  our  jurisprudence.  Its  history  furnishes  many  exam- 
ples and  illustrations  of  this  tendency  and  of  its  results.  There  is  cer- 
tainly nothing  in  the  nature  of  an  examination  of  a  judgment  debtor, 
upon  the  question  as  to  his  title  to  and  possession  of  property  applica- 
ble to  the  payment  of  a  judgment  against  him,  and  of  the  fact  and  par- 
ticulars of  any  disposition  he  may  have  made  of  it,  which  would  render 
it  inappropriate,  as  a  proceeding  at  law,  under  the  orders  of  the  court, 
where  the  record  of  the  judgment  remains,  and  from  which  the  exe- 
cution issues.  Such  examinations  are  familiar  features  of  every  sys- 
tem of  insolvent  and  bankrupt  laws,  the  administration  of  which  be- 
longs to  special  tribunals,  and  forms  no  necessary  part  of  the  jurisdic- 
tion in  equity.  It  is  a  mere  matter  of  procedure,  not  involving  the  sub- 
stance of  any  equitable  right,  and  may  be  located,  by  legislative  au- 
thority, to  meet  the  requirements  of  judicial  convenience.  Whatever 
logical  or  historical  distinctions  separate  the  jurisdictions  of  equity  and 
law,  and  with  whatever  effect  those  distinctions  may  be  supposed  to 
be  recognized  in  the  constitution,  we  are  not  of  opinion  that  the  pro- 
ceeding in  question  partakes  so  exclusively  of  tiie  nature  of  either  that 
it  may  not  be  authorized,  indifferently,  as  an  instrument  of  justice  in 
the  hands  of  courts  of  whatever  description." 


78  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

harmony  on  this  point.*  Some  go  to  the  extent  of  hold- 
ing that  by  these  statutory  provisions,  which  enable  the 
law  courts  to  render,  in  a  different  form,  the  same  relief 
that  could  formerly  be  obtained  only  by  resort  to  a  court 
of  equity,  has  rendered  the  assistant  jurisdiction  of  a 
court  of  equity  obsolete.  And,  whether  the  jurisdiction 
of  courts  of  chancery  has  been  taken  away  by  these  stat- 
utory provisions  or  not,  the  right  to  resort  to  such  courts 
is  so  rarely  exercised,  at  the  i)resent  day,  that  it  may  well 
be  said  that,  practically,  the  jurisdiction  has  become  ob- 
solete. But,  as  we  have  seen,  some  of  the  equity  courts 
hold  that  the  jurisdiction  still  exists  in  such  courts,  that  the 
powers  given  to  the  law  courts  are  not  as  adequate  and 
effectual  as  the  equity  jurisdiction  and  the  means  by  which 
the  powers  of  courts  of  chancery  are  exercised  and  en- 
forced.^ But,  where  the  powers  given  to  common-law 
courts  are  adequate,  there  can  be  no  doubt  that  the  exer- 
cise of  its  jurisdiction  by  a  court  of  chancery  would  be  an 
unwarranted  interference.^ 

'  Jacksonville,  etc.,  Ry.  Co.  r.  Peninsular  Land,  etc.,  Co.,  27  Fla.  157; 
9  Sou.  Rep.  665  ;  Adams  Eq.,  8th  ed.,  1,  note. 

'  Shotwell's  Adm'x.  r.  Smith,  20  N.  J.  Eq.  79;  Cannon  v.  McNab,  48 
Ala.  688;  Buckner  v.  Ferguson,  44  Miss.  667;  Millsaps  v.  Pfriffer,  Id. 
805  ;  Kearney  v.  Jeffries,  48  Miss.  343. 

»  Brown  v.  Swann,  10  Pet.  497 :  Ex  parte  Boyd,  105  U.  S.  647 ;  United 
States  V.  McLaughlin,  24  Fed.  Rep.  823 ;  Rindskopf  v.  Platto,  29  Fed. 
Rep.  130 ;  Riopelle  v.  Doeliner,  26  Mich.  102. 

In  Brown  v.  Swann,  10  Pet.  497,  501,  it  was  said:  "  When  the  legis- 
lature of  Virginia  passed  the  statute,  it  fixed  the  nature  and  extent  of 
the  jurisdiction  of  a  court  of  equity  to  compel  a  discovery,  upon  oath, 
from  an  interested  party,  in  a  suit  either  in  law  or  in  equity,  and  the 
rules  which  equity  had  prescribed  to  itself  to  enforce  its  jurisdiction  in 
this  regard.  It  knew  the  distinction  between  a  bill  for  such  discovery 
and  other  bills  in  chancery,  which  are  also  bills  for  discovery.  One  of 
the  former  is  a  bill  for  the  discovery  of  facts  alleged  to  exist  only  in  the 
knowledge  of  a  person,  a  party  to  a  private  transaction  with  the  person 
seeking  the  disclosure  ;  essential  to  the  establishment  of  a  just  right  in 
the  latter,  and  which  would  be  defeated  without  such  disclosure.  In 
other  words,  it  is  a  bill  to  discover  facts  which  can  not  be  proved  ac- 
cording to  the  existing  forms  of  procedure  at  law.  The  jurisdiction  of 
a  court  of  equity,  in  this  regard,  rests  upon  tiie  inability  of  the  courts 
of  common  law  to  obtain,  or  to  compel,  such  testimony  to  be  given.  It 
has  no  other  foundation ;  and  whenever  a  discovery  of  this  kind  is 
sought  in  equity,  if  it  shall  appear  that  the  same  facts  could  be  obtained 


ASSISTANT    JURISDICTION.  79 

So  it  may  safely  be  said  that  where  a  statute  provides  a 
means  by  which  a  common-law  court  may  bring  about  a 
discovery,  by  the  examination  of  witnesses  or  otherwise, 
it  is  not  only  unnecessary,  but  inexpedient  and  unsafe,  to 
resort  to  a  court  of  equity  for  the  purpose.^ 

bj'^  the  process  of  the  courts  of  common  law,  it  is  an  abuse  of  the  powers 
of  chancery  to  interfere.  The  courts  of  common  law  having  full  power 
to  compel  the  attendance  of  witnesses,  it  follows  that  the  aid  of  equity- 
can  alone  be  wanted  for  a  discovery  in  those  cases  where  there  is  no 
witness,  to  prove  what  is  sought  from  the  conscience  of  an  interested 
party.  Courts  of  chancery  have  then  established  rules  for  the  exercise 
of  this  jurisdiction,  to  keep  it  within  its  proper  limits,  and  to  prevent  it 
from  encroaching  upon  the  jurisdiction  of  the  courts  of  common  law. 

"  The  rule  to  be  applied  to  a  bill  seeking  a  discovery  from  an  interested 
party  is  that  the  complainant  shall  charge  in  his  bill  that  the  facts  are 
known  to  the  defendant,  and  ought  to  be  disclosed  by  him,  and  that  the 
complainant  is  unable  to  prove  them  by  other  testimony  ;  and,  when 
the  facts  are  desired  to  assist  a  court  of  law  in  the  progress  of  a  cause, 
it  should  be  affirmatively  stated  in  the  bill  that  they  are  wanted  for 
such  purpose.  Suc^h  is  the  rule  in  Virginia,  as  may  be  seen  in  Duval  v. 
Ross,  2  Mun.  290,  and  in  Bass  v.  Bass,  4  Hen.  &  Mun.  478 ;  and  it  will 
be  applied  to  the  construction  of  the  third  section  of  the  statute  against 
usury,  upon  the  authority  of  her  own  courts. 

"Many  other  authorities  to  the  same  purpose  might  be  cited  from 
English  and  American  reports.  Unless  such  averments  are  required,  is 
it  not  obvious  that  the  boundaries  between  the  chancery  and  common- 
law  courts  would  be  broken  down,  and  that  chancellors  would  find 
themselves,  under  bills  for  a  discovery  from  an  interested  party,  engaged 
in  the  settlement  of  controversies,  by  evidence  aliunde,  which  the  com- 
mon-law courts  could  have  procured,  under  the  process  of  a  subpena,  in 
delaying  proceedings  at  law,  by  pretenses  that  a  discovery  is  wanted,  for 
the  sake  of  justice,  and  in  enjoining  judgments,  upon  indefinite  alle- 
gations of  the  plaintiff  having  a  knowledge  of  facts  which  gave  to  a 
defendant  an  equity  to  be  released ;  though  the  defendant  might  have 
availed  himself  of  the  evidence  of  third  persons  to  establish  the  same 
facts,  in  the  progress  of  the  cause,  or  of  the  powers  of  chancery  to  pro- 
cure them,  by  a  discovery,  to  assist  the  court  in  deciding  it,  which  last 
is  the  case  now  under  consideration  ?  " 

'  "  It  is  very  doubtful  whether  a  pure  bill  of  discovery  in  an  equity 
suit  would  lie  at  the  present  day.  It  may  be  that  a  discovery  might  be 
asked  for  in  a  bill  for  relief ;  but  it  is  probable  that  no  prudent  counsel, 
understanding  what  must  be  the  effect,  woul<l  at  this  day  file  a  pure 
bill  of  discovery,  or  call  for  a  discovery  in  a  bill  for  relief,  and  thus  un- 
'necessarily  give  the  defendant  an  advantage  which  he  would  not  other- 
wise have  under  our  present  practice,  which  enables  a  complainant  to 
place  the  defendant  upon  the  stand  and  examine  him  as  a  witness,  and 


80  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

As  to  the  necessity  of  showing  affirmatively,  in  a  bill 
for  discovery,  that  a  party  can  not  establish  his  defense  at 
law  by  the  testimony  of  witnesses,  or  without  the  aid  he 
seeks,  a  distinction  is  made  between  a  bill  for  discovery 
purely  and  one  for  discovery  and  relief,  it  being  asserted 
that  in  the  former  no  such  showing  is  necessary.^  But 
this  distinction  does  not  seem  to  be  maintained  by  the 
later  decisions. 

The  fact  that  a  court  of  equity  may,  by  reason  of  its 
jurisdiction  to  compel  a  discovery,  draw  to  itself  the 
power  to  grant  relief  as  well,  is  not  overlooked.^  But  we 
are  now  considering  the  assistant  jurisdiction  of  courts 
of  equity  which  does  not  include  their  right  to  grant  the 
same  relief  in  the  action  that  might  be  granted  by  a  court 
of  law  or  to  afibrd  relief  by  final  decree,  although  of  a 
different  kind  from  that  which  a  court  of  law  might 
render.^ 

It  must  not  be  supposed  from  the  fact  that  the  jurisdic- 
tion in  equity  to  obtain  a  discovery  has  been  superseded 
by  statutory  provisions  relating  to  the  subject,  that  all  the 
learning  on  the  subject  has  ceased  to  be  useful.  The  stat- 
utory remedies  provided  are  regulated  very  considerably 
by  the  old  equity  principles.  For  example,  where  an  at- 
tempt is  made  to  compel  answers  to  interrogatories  under 
statutes  providing  therefor,  the  question  as  to  what  are 
proper  interrogatories,  how  far  a  party  can  be  required  to 
answer  where  it  is  claimed  his  answers  will  criminate  him, 
and  many  other  matters  connected  with  the  subject  relat- 
ing, not  only  to  interrogatories,  but  to  the  production  of 
documents,  perpetuation  of  testimony,  and  other  matters 

thereby  obtain  his  testimony  much  more  judiciously — testimony  of  a 
character  less  prejudicial  to  his  client's  interests  than  it  would  be  were 
the  testimony  to  come  in  the  form  of  a  sworn  answer,  strained  through 
the  legal  collender  of  his  counsel,  and  by  him  shaped  and  shaded  in  his 
office  at  his  leisure."  8awyer,  J.,  in  United  States  v.  McLaughlin,  24 
Fed.  Rep.  825. 

1  Story's  Eq.  Pi.,  sec.  319,  note. 

2  Hopkins  v.  United  N.  J.  R.  R.  &  Canal  Co.,  27  N.  .T.  Eq.  286. 
*  1  Pomeroy's  Eq.  Jur.  101. 


TERMS    OF    COURT    AS    AFFECTING    JURISDICTION.  81 

of   former    equitable    cognizance,  are    still    governed    by 
equitable  principles.^ 

19.  Terms  of  court  as  affecting  jurisdiction. — In  at- 
tempting to  ascertain  what  was  necessary  to  constitute  a- 
court,  we  have  seen  that  in  order  to  properly  and  legally 
perform  the  functions  and  exercise  the  jurisdiction  of  a 
court,  the  judge  or  judges  must  be  in  the  discharge  of  ju- 
dicial duties  at  the  time  and  at  the  place  prescribed  by  law 
for  the  sitting  of  the  court.^  The  times  and  places  at 
which  courts  shall  sit  are  usually  fixed  by  statute,  and  in 
order  that  a  court  may  exercise  its  jurisdiction,  these  stat- 
utory provisions  must  be  observed.  The  proceedings  of  a 
court  at  a  time  or  place  other  than  that  prescribed  by  law 
are  coram  non  judice,  and,  therefore,  void.^  It  is  not  only 
void ;  it  is  not  the  act  of  a  court  at  all.*  Parties  can  not 
stipulate  for  the  trial  of  a  cause  out  of  term  time,  and  thus 
render  the  acts  of  the  judge  or  judges  valid  as  the  acts  of  a 
court.^  It  is  sometimes  difiicult  to  determine  whether  an 
act  to  be  done  is  one  which  may  be  performed  by  the 
judge,  or  whether  it  is  one  for  the  court.  Acts  which  are 
within  the  powers  of  a  judge  need  not  be  done  in  term,  and 
in  open  court,  but  may  be  done  at  chambers  or  elsewhere, 
at  any  time  when  business  may  be  legally  done.  But 
where  the  act  is  required  to  be  done  by  the  court,  it  can 
not  be  done  by  the  judge  of  the  court  in  vacation  unless 

'  Jacksonville,  etc.,  Ry.  Co.  r.  Peninsular  Land,  etc.  Ry.  Co.,  27  Fla. 
157  ;  9  Sou.  Rep.  6(il  ;  Blennerhassett  r.  Stephens,  5S  Hun.  611;  12  N.  Y. 
Sup.  602. 

^  Ante,  sec.  1 ;  Hobart  r.  Hobart,  45  la.  501,  503  ;  Bouv.  Law  Die.  title. 
Courts ;  Anderson's  Die.  of  Law  274 ;  Brumley  v.  The  State,  20 
Ark.  77. 

3  Brumley  v.  The  State,  20  Ark.  77  ;  Norwood  v.  Kenfield,  34  Cal.  329 ; 
Wicks  r.  Ludwig,  9  Cal.  173;  McCool  v.  The  State,  7  Ind.  378;  Cain  v. 
Goda,  84  Ind.  209  ;  Galusha  v.  Butterfield,  2  Scam.  ( 111.)  227 ;  Freeman  on 
Judg.,  sec.  121 ;  1  Black  on  Judg.,  sees.  179,  1*80;  Osborn  Ex  parte,  24 
Ark.  479  ;  Francis  v.  Wells,  4  Colo.  274 ;  Grable  r.  The  State,  2  G.  Greene 
<  la.),  659.     But  see  on  this  point.  State  v.  Payton,  32  Mo.  App.  522. 

*  Ayite,  sec.  1  ;  Wicks  v.  Ludwig,  9  Cal.  173;  Francis  v.  Wells,  4  Colo. 
274;  Freeman  on  Judg.,  sec.  121. 

5  AVicks  V.  Ludwig,  9  Cal.  173 ;  Bates  r.  Gage,  40  Cal.  183. 
{] 


82  GENERAL    PRINCIPLES    AFFECTTNG    JURISDICTION. 

the  power  is  expressly  conferred  upon  liini  by  hiw.^  A 
judge  can  not  fix  terms  of  court;  this  must  be  done  by 
hxw.^  But  such  power  may  be  conferred  upon  the  judges 
by  statute.-^  The  term  "  vacation  "  is  usually  understood 
to  mean  the  interim  between  terms  of  court,  from  the 
final  adjournment  of  one  term  to  the  commencement  of 
another,*  But  it  has  been  held  that  where  a  terra  is  ad- 
journed to  a  subsequent  day,  the  time  intervening  is  a  va- 
cation.^ Provision  is  frequently  made  for  the  adjournment 
of  terms  of  court  and  the  holding  of  special  terms. 
"When  special  terms  are  provided  for,  notice  of  the  time 
and  place  of  holding  the  same  is  usually  required.  And  in 
order  to  give  the  court  jurisdiction  to  act  at  such  times,  the 
requirements  of  the  law  must  be  complied  with.^  AYhere 
a  court  might,  under  certain  contingencies,  provided  by 
law,  be  legally  in  session  at  a  certain  time,  without  notice 
or  other  action  on  its  part,  it  will  be  presumed,  in  the  ab- 
sence of  any  showing  to  the  contrary,  that  it  was  legally 
in  session.®  As  a  general  rule  a  court  can  not  legally 
transact  business  on  Sunday.  But  there  are  exceptions  to 
this  rule.  It  has  been  held,  for  example,  that  the  verdict 
of  a  jury  may  be  received  on  Sunday .''  But  in  some  of 
the  cases  it  is  strongly  held  to  the  contrary.'^  It  has  been 
held  that  a  court  may  reinstruct  a  jury  on  Sunday  in  case 
of  a  disagreement.^ 

'  Ferger  v.  Wesler,  35  Ind.  53  ;  Conkling  r.  Ridgley,  112  111.  .36 ;  New- 
mau  V.  Hammond,  46  Ind.  119. 

''  Batten  v.  The  State,  80  Ind.  394 ;  Doss  v.  Waggoner,  3  Tex.  515. 

^  Conkling  r.  Ridgley,  112  111.  36.  ^  Anderson's  Die.  of  Law,  1079. 

5  Dunn  V.  The  State,  2  Ark.  229 ;  35  Am.  Dec.  54 ;  Orman  v.  Riley,  16 
Cal.  186. 

«  State  V.  Penley,  107  N.  C.  808 ;  12  S.  E.  Rep.  455. 

^  State  V.  Penley^  107  N.  C.  808  ;  12  S.  E.  Rep.  455  ;  Corey  v.  Silcox,  5 
Ind.  370;  Rosser  i).  McColley,  9  Ind.  687;  McCorkle  v.  The  State,  14 
Ind.  39. 

»  Davis  V.  Fish,  1  G.  Greene  (la.)  406;  48  Am.  Dec.  387. 

®  Jones  V.  Johnson,  61  Ind.  257. 

In  some  of  the  states  the  question  has  been  set  at  rest  by  statutory 
provisions.  For  example,  in  California  it  is  provided  that  no  court  shall 
be  open,  or  any  judicial  business  be  transacted  on  Sunday  and  certain 
legal  holidays,  except  for  the  following  purposes  : 


TERMS    OF    COURT    AS    AFFECTING    JURISDICTION.  83 

At  common  law  Sunday  was  a  day  upon  which  no  ju- 
dicial act  could  be  done/  and  in  the  absence  of  any  statute 
this  rule  is  generally  adhered  to.  To  avoid  this  well  set- 
tled principle,  the  cases  in  which  it  is  held  that  a  verdict 
may  be  received  on  Sunday  usually  hold  that  it  is  not  a 
judicial  act.  But  it  is  a  part  of  the  trial  of  a  cause,  and 
is  clearly  judicial  in  its  nature.  There  is  really  no  very 
satisfactory  principle  upon  which  these  decisions  can  be 
justified.  It  is  better  to  say  that  they  have  abandoned  the 
common  law  rule  on  the  subject  more  as  a  matter  of  con- 
venience than  any  thing  else.  This  change  has  not  ex- 
tended to  the  rendition  of  judgments.  It  is  still  held  that 
a  judgment  can  not  be  rendered  on  Sunday.^ 

"  1.  To  give,  upon  their  request,  instructions  to  a  jury  when  deliber- 
ating on  their  verdict. 

"  2.  To  receive  a  verdict  or  discharge  a  jury. 

"3.  For  the  exercise  of  the  powers  of  a  magistrate  in  a  criminal  ac- 
tion, or  in  a  proceeding  of  a  criminal  nature  ;  provided  that  the  supreme 
court  shall  always  be  open  for  the  transaction  of  business ;  and  provided 
further,  that  injunctions  and  writs  of  prohibition  may  be  issued  and 
served  on  any  day." 

Code  Civ.  Pro.  Cal.,  sec.  134.  See  also  Code  Civ.  Pro.  N.  Y.,  sec.  6; 
An.  Stat.  Neb.,  18S1,  p.  344,  sec.  59. 

In  a  note  to  Coleman  r.  Henderson,  12  Am.  Dec.  290,  291,  it  is  said: 
"  That  a  verdict  may  be  received  on  Sunday  seems  now  to  be  settled. 
Van  Riper  r.  Van  Riper,  7  Am.  Dec.  576;  True  v.  Plumley,  3i5  Me.  466; 
Cory  V.  Silcox,  5  Ind.  370;  Rosser  v.  McGolley,  9  Id.  587;  McCorkle  v. 
State,  14  Id.  39;  Hoghtaling  v.  Osborn,  15  Johns.  119;  Webber  i\  Mer- 
rill, 34  N.  H.  202;  State  v.  Ricketts,  74  N.  C.  187  ;  Huidekoper  v.  Cotton, 
3  Watts,  56 ;  Reid  v.  State,  53  Ala.  402.  The  reason  assigned  for  the 
validity  of  such  a  verdict  by  some  of  the  cases  is  that  the  rendition  and 
receiving  is  a  work  of  necessity,  and  by  others  that  it  is  merely  a  min- 
isterial act,  and  not  within  the  prohibition  relating  to  judicial  acts  on 
Sunday.  The  conditions  upon  which  a  verdict  rendered  on  Sunday  will 
be  deemed  valid,  are  well  expressed  in  the  elaborate  opinion  of  Judge 
Manning,  in  Reid  v.  State.  He  says  :  '  We  are  of  opinion  that  when  a 
jury,  to  whom  a  cause  has  been  committed  on  a  Saturday  or  other  secu- 
lar day  of  the  week,  are  lawfully  kept  together  under  charge  of  officers 
of  court,  and  are  ready  on  Sunday  to  deliver  in  their  verdict,  it  is  law- 
ful for  the  judge  then  to  meet  them  with  the  other  officers  of  court  to 
receive  it,  and  thereupon  discharge  the  jury  and  adjourn  the  court 
ufttil  the  next  day.'  " 

'  Chapman  v.  The  State,  5  Blkf.  (Ind.)  111. 

^  Chapman  r.  The  State,  5  Blkf.  (Ind.)  Ill;  Allen  v.  Godfrev,  44  X. 
Y.  433. 


84  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

During  the  term  provided  by  law,  the  court  may  regu- 
late the  time  of  its  sittings  and  adjournments,  from  one 
day  to  any  succeeding  day  of  the  term,  or  reconvene  the 
court  on  the  same  day  after  an  adjournment  to  the  follow- 
ing day.'  And  the  ftiilure  of  the  court  to  appear,  for  one 
day,  during  the  term,  and  during  the  trial  of  a  cause,  does 
not  render  its  subsequent  proceedings,  commenced  on  the 
following  day,  void.^  But  with  the  final  adjournment  the 
court  not  only  ceases  to  be  a  court  for  that  term,  but  it 
thereby  loses  all  control  over  its  judgments  and  decrees 
rendered  daring  the  term,  unless  its  jurisdiction  is  saved 
by  some  proper  proceeding  instituted  within  the  time  al- 
lowed by  law.'^ 

A  premature  adjournment  for  the  term,  by  a  sherift' 
who  is  authorized  to  adjourn  the  same  at  a  certain  time 
if  the  judge  does  not  appear,  does  not  affect  the  right  of 
the  judge  to  open  and  hold  the  court  for  the  balance  of 
the  term.* 

It  is  held  in  some  of  the  states  that  a  valid  judgment 
may  be  rendered  during  vacation,  and  entered  as  of  the 
preceding  or  ensuing  term.^  But  the  weight  of  authority 
and  reason  is  against  this  proposition.^     The  doctrine  that 

^  Stefani  v.  The  State,  124  Ind.  3 ;  24  N.  E.  Rep.  254 ;  Martina  v.  The 
State,  105  Ind.  445;  5  N.  E.  Rep.  20;  Bowen  v.  Stewart,  128  Ind.  507 ;  26 
N.  E.  Rep.  168. 

■'  People  I'.  SuUivan,  115  N.  Y.  185;  21  N.  E.  Rep.  1039. 

'  Daniels  r.  Daniels,  12  Nev.  118;  Johnson  r.  Pacific  Cement  Co.,  50 
Cal.  048. 

*  Thomas  v.  Fogarly,  19  Cal.  644;  People  v.  Shainwold,  51  Cal.  468. 

^  1  Black  on  Judg.,  sec.  179,  citing:  King  v.  Green,  2  Stew.  133;  19 
Am.  Dec.  46;  Hervey  v.  Edmunds,  68  N.  Car.  243;  New  Orleans  v. 
Gauthreaux,  32  La.  Ann.  1126;  Green  v.  Reagan,  32  La.  Ann.  974.  See 
also.  Ex  parte  Bennett,  44  Cal.  84;  Roy  v.  Horsley,  6  Or.  382;  25  Am. 
Rep.  537. 

*  Puget  Sound  Agri.  Co.  v.  Pierce  County,  1  Wash.  Ter.  75  ;  Earl  v. 
Earl,  27  Kan.  538;  Bates  v.  Gage,  40  Cal.  183;  Norwood  v.  Kenfield,  34 
Cal.  329;  Roy  v.  Horsley,  0  Ore.  382;  25  Am.  Rep.  539,  note;  Cooley's 
Const.  Lim.  *p.  399;  Francis  v.  Wells,  4  Colo.  274;  Filley  v.  Cody,  4 
Colo.  109;  Kirtley  I'.  Marshall  Silver  M'g  Co.,  4  Colo.  Ill;  Kinports  v. 
Rawson,  29  W.  Va.  487;  2  S.  E.  Rep.  85 ;  Wells'  Jur.,  sees.  132-139. 

Mr.  Freeman,  in  his  work  on  Judgments,  says:  "If  the  statute  re- 
quires regular  terms  to  be  held  for  the  trial  of  causes,  the  court,  in  the 


TliKMS    UF    COURT    AS    AFFECTING    JURISDICTION.  85 

such  a  proceeding  can  he  rendered  valid  by  the  mere  con- 
sent of  parties,  is  certainly  not  in  harmony  with  well  set- 
tled legal  principles.  If,  as  is  almost,  if  not  quite  uni- 
formly held,  a  judgment  or  decree  rendered  in  vacation  is 
not  the  action  of  a  court,  and  is  a  nullity,  it  is  difficult  to 
see  how  it  can  be  rendered  valid  by  mere  consent.  And 
further,  it  would  seem  to  be  in  direct  conflict  with  the 
well  settled  principle  that  jurisdiction  can  only  be  exer- 
cised by  a  court,  and  can  not  be  conferred  upon  any  other 
person  or  body  by  the  consent  of  parties.^ 

Some  of  the  cases  referred  to  as  holding  that  a  judg- 
ment may  be  entered  in  vacation,  by  consent,  are  founded 
upon  code  provisions  to  the  effect  that  a  defendant  may 
submit  to  a  judgment  in  vacation  by  an  agreement  in 
writing,  or  otherwise.^  Others  of  the  decisions  can  not 
be  accounted  for  in  this  way. 

Where  it  is  provided  that  causes  may  be  heard  at  a 
special  term  with  the  consent  of  parties,  such  consent  is 
necessary  to  give  the  court  jurisdiction.' 

The  question  sometimes  arises  whether,  where  the  trial 
of  an  action  is  commenced  during  the  term,  but  can  not 
be  completed  before  its  close,  the  court  has  power  to  con- 
tinue the  hearing  beyond  the  term  fixed  by  law.  On  this 
question  the  authorities  are  conflicting.  In  some  cases  it 
is  held  that  the  court  has  no  such  power,  and  that  its 
functions  as  a  court  cease  with  the  close  of  the  term.*  In 
others,  it  is  held  that  where  the  case  is  entered  upon  with 
the  bona  fide  expectation  and  belief  that  it  will  be  con- 
intervals  between  those  terms  is,  for  the  purpose  of  conducting  trials,  in 
the  same  condition  as  though  its  authority  over  the  case  were  entirely 
withdrawn.  It  is  no  longer  a  court.  Judicial  powers  can  not  be  con/erred 
upon  it  by  consent  of  the  parties;  and  any  judgment  rendered  upon  a  trial 
had  in  pursuance  of  such  consent  is  void,  and  is  so  wanting  in  even  the 
color  oi  judicial  authority  that  it  will  not  be  reversed  upon  appeal." 
Freeman's  Judg.,  sec.  121. 

1  Ante  sees.  1,  10,  12. 

2  Code,  Iowa,  1851,  sees.  1821,  1822;  Hattenback  v.   Haskins,   12  la. 
109;  O'Hagen  v.  O'Hagen,  14  la.  264;  Townsley  v.  Morehead,  9  la.  565. 

3  Fowler  v.  Mosher,  85  Va.  421  ;  7  S.  E.  Rep.  542. 

*  Davis  V.  Fish,  1  G.  Greene  (la.)  406 ;  48  Am.  Dec.  387. 


86  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

eluded  before  the  close  of  the  term,  the  trial  may  be  com- 
pleted after  the  term  has  closed,  where  the  judge  is  only- 
directed  and  not  imperatively  required  by  law  to  hold 
court  during  the  time  in  another  county.'  In  some  of  the 
states  provision  is  made  for  an  emergency  of  this  kind  by 
statute.^ 

Independent  of  such  a  statutory  provision,  it  is  not  easy 
to  see  upon  what  principle  it  can  properly  be  held  that  a 
term  of  court,  fixed  by  law,  can  be  extended  by  the  act  of 
the  court  in  commencing  the  trial  of  a  cause. 

A  term  of  court,  as  fixed  by  law,  can  not  be  abridged 
by  an  adjournment  of  the  court  before  the  term  expires. 
So  where  it  is  provided  that  the  terms  of  court  in  one 
county  shall  commence  immediately  upon  the  close  of  the 
terms  of  court  in  another  county  in  the  district,  the  court 
can  not  legally  adjourn  the  term  in  the  first  county  and 
take  up  the  business  of  the  other  county  before  the  expira- 
tion of  the  first  term  as  fixed  by  law.  The  adjournment 
does  not  shorten  the  term,  it  only  stops  the  business.^ 

A  judgment  rendered  during  the  term  may  be  entered 
in  vacation.*  And  sometimes  the  prothonotary  of  the 
court  is  authorized  to  sign  judgments  or  to  enter  them  in 
vacation.^  But  where  the  entries  of  judgments  are  re- 
quired to  be  read  and  signed  in  open  court,  by  the  judge, 
a  judgment  entered  by  the  clerk  after  the  close  of  the 
term  is  void,  although   the  judge   may  have  signed  the 

1  The  State  v.  Knight,  19  la.  98 ;  Van  Riper  v.  Van  Riper,  1  South  (N. 
J.)  156;  7  Am.  Dec.  576;  Bryceland  v.  Common wealtii,  74  Pa.  St.  467; 
Johnson  v.  Pacific  Cement  Co.,  50  Cal.  648. 

^  In  Indiana  it  is  provided  by  statute  that  "  whenever  a  trial  is  begun 
and  in  progress  at  the  time  when,  bj'  law,  the  term  of  such  court 
would  expire,  the  term  shall  be  extended  until  the  close  of  such  trial." 
Rev.  Stat.  Ind.,  1881,  sec.  1349;  Elliott's  Supp.  Ind.  Stat.,  sec.  284; 
Addington  v.  Wilson,  5  Ind.  137;  61  Am.  Dec.  81;  1  Rev.  Stat.  Ohio, 
1886,  sees.  453,  470 ;  Dorsch  v.  Rosenthal,  39  Ind.  209 ;  Wayne  Pike  Co. 
V.  Hammons,  27  N.  E.  Rep.  487. 

3  Batten  v.  The  State,  80  Ind.  394. 

*  Sieber  v.  Frink,  7  Colo.  148 ;  2  Pac.  Rep.  901 ;  Board  of  Supervisors 
V.  Sullivan,  51  Wis.  115 ;  8  N.  W.  Rep.  12. 

*  Beyerle  v.  Hain,  61  Pa.  St.  226;  Board  of  Supervisors  v.  Sullivan,  51 
Wis.  115;  8N.  W.  Rep.  12. 


SPECIAL    A>'T)    INFERIOR    JURISDICTION,  ETC.  87 

record    in   blank,  with   direction    to   the   clerk   to  fill   in 
the  judgment  over  his  signature.' 

In  order  to  constitute  a  legal  term  of  court,  the  same 
must  be  convened  at  the  time  provided  by  law.^  But  pro- 
vision is  usually  made  for  the  opening  and  adjournment  ' 
of  the  court  from  day  to  day  by  some  officer,  either  the 
clerk  or  sherifi",  until  the  appearance  of  the  judge.^  If 
the  court  is  not  opened,  and  the  term  can  not  be  held,  the 
business  goes  over,  without  any  action  on  the  part  of  the 
court  or  parties,  until  the  next  term  in  course,  or  the  next 
special  term,  if  one  is  provided  for.^ 

When  the  court  is  once  opened,  the  presence  of  the 
judge  is  necessary  at  all  times  when  judicial  business  is 
being  transacted.^  And  where  a  certain  number  of  judges 
is  required  to  transact  business,  the  presence  of  any  of  their 
number  can  not  be  dispensed  with.®  But  the  fact  that  one 
of  the  judges,  necessary  to  constitute  the  court,  is  called 
as  a  witness  in  the  cause  on  trial,  and  temporarily  leaves 
the  bench  and  takes  the  witness  stand  for  that  purpose, 
does  not  affect  the  jurisdiction  of  the  court.^ 

It  is  held  in  New  York,  that  where  three  judges  are 
necessary  to  constitute  a  court,  and  a  judge  who  did  not 
hear  the  argument  is  not  allowed  to  participate  in  the  de- 
cision, that  such  judge  may,  nevertheless,  sit  at  the  time 
of  the  decision,  in  order  to  constitute  a  court,  and  a  decis- 
ion by  the  two  judges  who  heard  the  argument,  is  valid.^ 

20.  Special  and  inferior  jurisdiction  how  obtained  and 
EXERCISED. — Courts  are  frequently  vested  with  inferior  or 
special  jurisdiction  only,  or  courts  of  general  and  superior 
jurisdiction  are  given  jurisdiction  in  special  or  particular 
cases,  to  be  exercised  to  the   extent   and   in  the  manner 

'  Passwater  v.  Edwards,  44  Ind.  343;   State  c.  Thistlethwaite,  83  Ind. 
317;  Mitchell  v.  St.  John,  98  Ind.  598. 
'  People  V.  Sanchez,  24  Cal.  17 ;  The  State  v.  Roberts,  8  Nev.  239. 
^  People  r.  Sanchez,  24  Cal.  17.  *  Whitman  r.  Fisher,  74  111.  147. 

s  Meredeth  r.  The  People,  84  111.  479. 
«  Blend  v.  The  People,  41  N.  Y.  644. 
'  People  V.  Dohring,  59  N.  Y.  374 ;  17  Am.  Rep.  349. 
«  Corning  v.  Slosson,  16  N.  Y.  294. 


88  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

specially  provided  by  statute.  These  courts  of  inferior  or 
special  jurisdiction  are  said  to  act  by  virtue  of  the  statute, 
and  to  be  controlled  by  it,  as  contradistinguished  from 
courts  which  proceed  according  to  the  course  of  the  com- 
mon law.' 

A  court  of  general  jurisdiction,  and  which,  in  the  ordi- 
nary exercise  of  its  jurisdiction  does  proceed  according  to 
the  course  of  the  common  law,  may  have  conferred  upon 
it  statutory  jurisdiction,  as,  for  example,  in  case  of  attach- 
ment, garnishment,  and  other  similar  proceedings  which 
were  unknown  to  the  common  law.^ 

Where  the  statute  provides  for  the  manner  of  acquiring 
jurisdiction,  and  the  mode  of  proceeding  thereafter,  in 
this  class  of  courts  and  cases,  the  provisions  of  the  statute 
must  be  followed  or  the  court  will  be  without  authority  to 
act.'  And  the  proceedings  must  show  upon  their  face  that 
jurisdiction  has  been  obtained,  and  the  power  delegated 
by  the  statute  has  been  exercised  in  the  appointed  mode.* 
But  in  construing  the  records  of  such  tribunals,  acting 
within  the  scope  of  their  authority,  in  ascertaining  whether 
they  have  followed  the  statutory  requirements,  technical 
precision  is  not  required.  It  is  enough,  if,  taking  the 
whole  transcript  of  the  proceedings,  giving  it  a  reason- 
able   construction,    it    appear,    though    informally,    that 

'  Ante,  sec.  7;  Cox  v.  Groshong,  1  Pinney  (Wis.),  307;  Galpin  v.  Page, 
85  V.  S.  350. 

^  Gunn  V.  Howell,  27  Ala.  663 ;  62  Am.  Dec.  785 ;  Chollar  Mining  Co. 
V.  Wilson,  66  Cal.  374;  5  Pac.  Rep.  670. 

3  Grimes'  Estate  v.  Norris,  6  Cal.  621,  625;  65  Am.  Dec.  545;  Mulligan 
V.  Smith,  59  Cal.  206,  228;  In  re  Grove  Street,  61  Cal.  438;  Cox  v.  Gro- 
shong, 1  Pinney  (Wis.),  307;  The  State  v.  Hoelz,  69  Wis.  84,  88;  33  N. 
W.  Rep.  597;  Mossman  v.  Forrest,  27  Ind.  233;  The  State  v.  Gachen- 
heimer,  30  Ind.  63;  The  Dayton,  etc.,  R.  R.  Co.  v.  Marshall,  11  Ohio  St. 
497;  English  v.  Smock,  34  Ind.  115;  7  Am.  Rep.  215;  Chollar  Mining 
Co.  V.  Wilson,  66  Cal.  374;  5  Pac.  Rep.  670;  Williams  v.  Barnaman,  28 
How.  Prac.  59,  65;  Root  v.  McFerrin,  37  Miss.  17';  75  Am.  Dec.  49. 

*  Post,  sec.  25 ;  Central  Pacific  R.  R.  Co.  v.  Pearson,  35  Cal.  247,  25" ; 
Rosenthal  v.  The  Madison,  etc.,  Plankroad  Co.,  10  Ind.  358;  Rhode  v. 
Davis,  2  Ind.  53 ;  Straughau  v.  Inge,  5  Ind.  159 ;  Cobb  v.  The  State,  27 
Ind.  134;  Root  r.  McFerrin,  37  Miss.  17;  75  Am.  Dec.  49;  Horton  v.  El- 
liott, 90  Ala.  480;  8  Sou.  Rep.  10:5. 


SPECIAL    AND    INFERIOR    JURISDICTION,  ETC.  89 

the  statutory  requisites  have  been  complied  with.^  The 
disposition  of  the  courts  is  to  uphold  the  jurisdiction 
of  inferior  courts  whenever  it  can  be  done,  and,  there- 
fore, great  liberality  has  been  shown  in  construing 
the  transcripts  of  their  proceedings  when  brought  col- 
laterally in  question."  Where  certain  steps  are  required 
to  be  taken,  as  the  foundation  of  the  proceeding,  as,  for 
example,  the  tiling  of  a  petition  containing  certain  facts, 
or  signed  by  certain  persons,  the  giving  of  bond,  or  the 
like,  such  steps  are  jurisdictional,  and  must  be  taken, 
or  the  proceeding  will  be  void.  Being  jurisdictional,  they 
can  not  be  supplied  by  waiver  or  consent.^  But  the  rule 
that  defects  can  not  be  supplied  by  consent,  or  the  party 
be  estopped  by  a  failure  to  make  the  necessary  objections 
at  the  proper  time,  is  only  applicable  to  matters  afiecting 
the  public  or  jurisdiction  of  the  subject-matter.  A  party 
to  the  action  may  waive  personal  notice  upon  himself  in 
the  matter  of  a  special  statutory  proceeding,  or  in  a  court 
having  only  a  limited  or  special  jurisdiction,  as  well  as  in 
any  other.  But  where  some  proceeding  is  required  affect- 
ing the  public,  for  example,  w^here  notice,  not  to  any  in- 
dividual, but  to  all  persons,  is  required,  no  one  person  or 
any  number  of  persons,  can  give  jurisdiction  to  the  court 
or  other  tribunal  by  consenting  that  such  proceeding  may 
be  omitted,  or  by  an  appearance  or  other  act  of  submission 
to  the  authority  of  such  tribunal.^ 

1  Lewis  V.  Laylin,  46  Ohio  St.  663  ;  23  N.  E.  Rep.  288. 

''  McClellaud  r.  Miller,  28  Ohio  St.  498. 

'  Ruhland  v.  Supervisors,  55  Wis.  664,  668;  13  N.  W.  Rep.  877  ;  Flem-' 
ing  V.  Hight,  101  lud.  466,  470. 

*  Ruhland  r.  Supervisors,  55  Wis.  668 ;  13  N.  W.  Rep.  877 ;  Steen  v. 
Norton,  44  Wis.  412. 

In  Ruhland  v.  Supervisors,  55  Wis.  668 ;  13  N.  W.  Rep.  877,  the  court 
said  :  "  It  seems  to  us  very  clear  that  these  decisions  settle  the  question 
beyond  dispute,  in  this  court,  that  the  supervisors  can  only  acquire  ju- 
risdiction of  the  proceeding  to  lay  out  a  highway  by  a  strict  couapliauce 
with  the  statutory  direction,  and  that  no  consent  of  the  applicants  for 
the  highway,  or  the  persons  through  whose  lands  the  highway  is  laid 
out,  can  validate  the  proceedings,  if  the  board  has  failed  to  comply  with 
such  statutory  requirements.  A  laud  owner  through  whose  land  the  high- 
way runs,  may,  by  express  agreement,  waive  his  right  to  compensation 


90  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

It  is  sometimes  difficult  to  determine  whether  a  certain 
step  required  to  be  taken  is  one  affecting  the  person  of"  a 
defendant  or  the  subject-matter.  Usually  the  question 
can  be  determined  by  the  test  whether  or  not  the  proceed- 
ing called  for  is  necessary  to  give  the  court  jurisdiction  to 
act  upon  property  or  other  subject-matter  in  controversy, 
or  merely  to  bring  a  certain  interested  party  into  court  to 
answer  as  to  his  rights  or  interest  in  the  subject-matter. 
If  the  proceeding  is  only  necessary  to  bring  a  party  before 
the  court,  he  may  undoubtedly  waive  such  proceeding  b}'^ 
voluntarily  coming  into  court  and  submitting  himself  to 
its  jurisdiction,  or  by  expressly  consenting  to  the  omission 
of  such  proceeding.  But  this  can  not  be  done  where  the 
proceeding  is  one  to  reach  the  })roperty  or  other  subject- 
matter.^ 

for  the  land  taken  for  the  highway,  and  he  may,  undoubtedly,  by  ex- 
press stipulation,  waive  his  right  to  personal  notice  of  the  time  and 
place  of  the  meeting  of  the  board  to  decide  upon  the  petition,  because 
these  things  are  matters  which  are  personal  to  him,  and  do  not  affect 
the  interest  of  the  public  generally.  But  that  a  land  owner  can  not 
waive  any  step  prescribed  by  the  statute  in  which  the  public  generally 
is  interested,  is,  we  think,  conclusively  settled  by  the  cases  of  Roehr- 
born  r.  Schmidt  and  Damp  v.  Town  of  Dane,  supra.  In  the  first  case  it 
was  held  that  the  land  owner,  who  appeared  before  the  supervisors  at 
the  time  fixed  for  the  hearing  of  the  petition,  and  objected  to  the  laying 
out  of  the  highway,  did  not  waive  the  right  to  question  the  jurisdiction 
of  the  board  to  proceed,  for  the  reason  that  the  public  notice  required 
by  the  statute  had  not  been  posted  as  required  by  law ;  and  in  the  sec- 
ond case  it  was  held  that  the  appearance  of  the  town  before  the  board 
was  no  waiver  of  its  right  to  question  the  jurisdiction  of  the  authorities 
assuming  to  lay  out  such  highway  on  the  ground  that  no  proper  peti- 
tion had  ever  been  presented  to  them." 

'  Ante,  sec.  12;  Steen  v.  Norton,  45  AVis.  412;  Herrick  v.  The  Eacine 
Warehouse,  etc.,  Co.,  43  Wis.  93:  Williams  v.  Barnaman,  28  How.  Pr. 
59,  65;  Noyes  v.  Canada,  30  Fed.  Rep.  665. 

The  case  of  Steen  v.  Norton,  45  Wis.  412,  414,  was  a  proceeding  in  gar- 
nishment before  a  justice  of  the  peace.  The  question  was  whether  a 
defect  in  the  affidavit  of  garnishment  was  supplied,  or  waived,  by  the 
voluntary  appearance  of  the  defendant.  In  ruling  upon  the  question, 
the  court  say :  ''  It  is  said  above  that  the  plaintiff  in  the  principal  suit 
may  resort  to  this  extraordinary  remedy  at  his  own  will ;  but  this  is 
true  only  sub  modo.  It  is  not  the  policy  of  the  statute  to  place  this 
anomalous  action,  like  ordinary  actions,  at  tlie  mere  discretion  of  the 
plaintiff,  or  to  give  justices  of  the  peace  unqualified  jurisdiction  of  it, 


SPECIAL    AND    IXFERIOR    JURISDICTION,  ETC.  91 

Where  a  court  is  vested  by  statute  with  power  and  au- 
thority to  do  certain  acts,  as  for  example  to  order  a  sale 
of  propert}  of  the  estate  of  a  deceased  person,  but  under 
certain  limitations  or  restrictions,  it  must  appear  that  the 
facts  necessary  to  bring  the  particular  case  within  the  lim- 

as  in  ordinary  actions,  where  every  person  can  become  a  plaintiff, 
have  process,  and  put  the  justice's  jurisdiction  in  motion,  on  de- 
mand. The  plaintiff  in  garnishee  proceedings,  as  in  attachment  as 
mesne  process,  replevin,  and  the  like,  can  put  in  motion  the  juris- 
diction of  the  justice,  only  by  complying  with  statutory  prerequis- 
ites. And  the  justice  takes  jurisdiction  of  the  proceeding  only  upon  the 
plaintiff's  compliance  with  the  preliminaries  which  the  statute  makes 
the  condition  of  jurisdiction.  In  order  to  entitle  a  plaintiff  to  have  re- 
course to  the  process  of  garnishment,  in  order  to  confer  on  the  justice 
jurisdiction  to  entertain  it,  he  must  first  make  the  affidavit  required  by 
the  statute.  He  may  institute  his  suit  against  his  own  debtor,  of  his 
own  mere  will,  without  condition  precedent,  and  the  justice  takes  juris- 
diction of  it  by  the  mere  fact  of  its  institution.  So  he  may  institute  a 
8uit  against  his  debtor's  debtor,  of  his  own  mere  will,  without  condition 
precedent,  and  the  justice  will  take  jurisdiction  by  the  mere  fact  of  its 
institution.  But  in  that  case  the  plaintiff  can  recover  against  the  de- 
fendant in  his  own  right  only,  not  in  the  right  of  his  debtor,  not  as  a 
garnishee.  He  can  take  the  right  to  sue  his  debtor's  debtor  as  gar- 
nishee, and  the  justice  can  take  jurisdiction  of  the  proceeding  only  by 
force  of  the  statutory  affidavit.  The  affidavit  is  therefore  the  founda- 
tion, an  essential  condition,  of  the  jurisdiction  of  the  justice  over  the 
anomalous  statutory  proceeding ;  the  statute  making  the  extraordinary 
jurisdiction  expressly  dependent  on  the  affidavit.  Failure  of  the  affi- 
davit is  therefore  failure  of  jurisdiction  over  the  subject-matter.  The 
justice's  jurisdiction  of  the  proceeding  is  conditional,  not  absolute,  and 
remains  dormant  until  the  affidavit  supplies  the  condition.  Without  the 
affidavit,  the  proceeding  could  be  no  more  than  a  personal  action  of  the 
j)laiutiff,  in  his  own  right,  against  the  garnishee.  ...  It  is  quite 
certain  that  the  officer  takes  no  authority  to  summon  the  garnishee, 
without  the  statutory  affidavit.  And  his  summons  without  the  affidavit 
can  not  operate  to  fix  the  garnishee's  liability  to  the  plaintiff.  In  that 
case,  the  garnishee  may  discharge  his  liability  to  his  own  creditor.  And 
the  assumption  of  jurisdiction  by  the  justice,  or  the  submission  of  the 
garnishee  to  his  jurisdiction,  can  not  cure  want  or  material  defect  of  the 
affidavit,  or  absolve  the  garnishee  from  liability  to  his  own  creditor,  or 
fix  his  liability  to  his  creditor's  creditor,  which  the  statute  determines 
and  makes  wholly  dependent  upon  service  of  the  summons,  founded  on 
the  statutory  affidavit.  All  the  subsequent  proceedings  of  garnishment 
rest  upon  the  liability  of  the  garnishee  to  the  plaintiff,  the  change  of 
his  creditors,  tlie  substitution  of  a  stranger  for  his  own  creditor,  by 
operation  of  law,  upon  the  service  of  the  summons  which  the  officer 


92 


GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 


itations  or  restrictions  prescribed  actually  existed,  or  the 
action  of  the  court  will  be  without  authority.^ 

takes  authority  to  issue  and  serve  by  force  of  the  statutory  affidavit 
only  ;  mere  vv^aste  paper  in  the  absence  of  the  proper  affidavit.  Without 
the  affidavit,  the  officer  is  not  acting  within  the  scope  of  his  office  in 
summoning  the  garnishee.  And,  when  he  makes  his  return,  the  juris- 
diction of  the  justice  of  the  proceeding  of  garnishment  rests  wholly 
upon  the  effect  of  the  statutory  affidavit  and  summons,  in  subrogating — 
so  to  speak — the  plaintiff  for  the  garnishee's  creditor ;  in  other  words, 
upon  the  sufficiency  of  the  affidavit  to  charge  the  garnishee  with  liability 
to  the  plaintiff.  If  that  be  materially  defective,  the  justice's  want  of 
jurisdiction  over  the  subject-matter  is  apparent  on  the  face  of  the  affi- 
davit. And  the  affidavit,  taken  as  a  complaint,  discloses  no  cause  of  ac- 
tion against  the  garnishee,  no  ground  of  jurisdiction  of  the  proceeding; 
being  defective  in  a  material  averment,  not  cured  by  verdict  or  judg- 
ment. 

"Even  in  courts  of  justices  of  the  peace,  voluntary  appearance  and 
submission,  without  objection,  under  void  process,  will  cure  the  justice's 
defect  of  jurisdiction  over  the  person  of  the  defendant;  but  it  can  go  no 
further.  It  can  not  operate  to  give  the  justice  jurisdiction  of  a  proceed- 
ing which  he  could  not  take  without  such  appearance  and  submission. 
His  jurisdiction  of  the  subject-matter  must  come  by  statute;  and  if  the 
statute  makes  his  jurisdiction  of  the  subject-matter  dependent  on  pre- 
liminaries or  conditions  precedent,  the  justice  can  take  jurisdiction  only 
by  force  of  the  statutory  preliminaries  or  conditions  precedent.  This  is 
well  exemplified  by  the  writ  of  attachment,  as  mesne  process.  If  the 
affidavit  on  which  the  attachment  issues  be  materially  defective,  the  de- 
fendant is  entitled  to  have  the  action  commenced  by  it  dismissed  in  toto. 
But,  if  the  defendant  appear  and  submit  without  objection,  he  cures  the 
defect  of  the  process  as  a  personal  summons,  but  not  as  an  attachment 
of  property.  The  justice  takes  jurisdiction  to  render  personal  judg- 
ment against  him,  but  not  against  the  property  attached." 

1  "  It  is  sometimes  said  that  a  purchaser  at  administrator's  sale  is  not 
bound  to  look  beyond  the  judgment  of  a  court  of  competent  jurisdic- 
tion ;  and  it  is  often  said  that  an  order  of  sale  and  a  sale  under  the  or- 
der are  effectual  to  pass  the  title  to  the  purchaser ;  but  it  is  always  un- 
derstood that  the  jurisdiction  of  the  court  has  been  rightfully  called 
into  exercise,  and  that  the  order  of  sale  is  a  valid  order.  If  letters  of 
administration  were  granted  upon  the  estate  of  a  living  man  because  he 
had  been  committed  to  the  penitentiary  for  twelve  months,  and  the 
record  showed  the  fact,  it  could  never  be  held  that  an  order  of  sale  of 
his  land,  and  a  sale  in  conformity  with  the  order,  and  a  formal  decree 
of  confirmation,  would  pass  the  title  to  the  purchaser.  And  why  not? 
Here  would  be  a  judgment  of  a  court  of  competent  jurisdiction.  Here 
would  be  an  order  of  sale  and  a  sale  under  it ;  but  the  whole  would  be 
a  nullity,  because  the  jurisdiction  of  the  court  was  never  rightfully 
called  into  exercise  ;  or,  in  other  words,  because  the  facts  did  not  exist 


SPECIAL    AXD    INFERIOR    JURISDICTION,  ETC.  93 

When  jurisdiction  has  been  properly  acquired  it  must 
he  exercised,  throughout,  in  conformity  to  the  require- 
ments of  the  statute.'  But  if  a  tribunal  is  given  discre- 
tionary powers  no  other  court  can  interfere  with  its  pro- 
ceedings so  long  as  it  is  acting  within  its  statutory  powers, 
in  the  manner  provided  by  law,  and  in  good  faith,  on  the 
ground  that  such  discretion  is  not  being  wisely  exercised 
or  will  result  injuriously.  The  discretion  conferred  upon 
a  court  of  limited  jurisdiction  is  no  more  the  subject  of 
control  by  another  court  than  is  the  same  pow^er  vested  in 
a  court  of  superior  jurisdiction,  so  long  as  the  court  is 
acting  within  the  powers  and  in  the  mode  provided  by 
statute.^ 

The  right  to  set  aside  final  judgments  is  not  an  inci- 
dent to  the  ordinary  jurisdiction  of  courts  of  inferior 
jurisdiction,  and  can  not  be  exercised  unless  expressly  au- 
thorized.^    And  wiiere  the  power  to  vacate   or  set  aside  a 

^vhiell  authorized  the  court  to  grant  letters  of  admiuistration  and  make 
the  order  of  sale.  There  exii^ts  in  the  minds  of  some  a  loose  idea  that 
because  the  court  has  jurisdiction  to  order  the  sale  of  land,  its  jurisdic- 
tion is  exercised  whenever  it  orders  a  sale ;  and  it  it  is  said  that  if  a 
court  determines  any  question  of  fact  necessary  to  support  its  jurisdic- 
tion, its  determination  or  judgment  can  never  be  collaterally  impeached. 
This  can  not  be  universally  true,  because  in  the  case  of  an  administra- 
tion upon  the  estate  of  a  living  man,  the  court  necessarily  determines 
that  the  man  is  dead,  and  yet  the  man  may  be  shown  to  have  been 
alive  at  the  time  of  the  judgment ;  and  in  such  case,  although  every 
step  in  the  proceedings  by  which  the  man's  estate  is  sold  may  have 
been  taken  with  the  most  perfect  regularity,  and  although  the  purchaser 
buys  in  good  faith,  no  title  passes  or  can  pass.  This  shows  that  the 
court  only  exercises  its  jurisdiction  when  the  facts  exist  which  author- 
ize it  to  do  the  thing  in  question.  And  tlie  question  whether  the  juris- 
diction of  a  court  has  been  exercised  or  not  is  solved  by  ascertaining 
whether  or  not  the  facts  existed  which  authorized  the  court  to  act  as  it 
did  act."  Withers  r.  Patterson,  27  Tex.,  491 ;  86  Am.  Dec.  643,  647 ; 
Martin  v.  Williams,  42  Miss.  210 ;  97  Am.  Dec.  456,  461. 

1  Ruhland  r.  Supervisors,  55  Wis.  664;  13  N.  W.  Rep.  877;  Stfte  r. 
Castle,  44  Wis.  670;  White  v.  Conover,  5  Blkf.  (Ind.)  462;  Brown  r. 
Kellogg,  17  Wis.  475  ;  Crandall  r.  Bacon,  20  Wis.  639 ;  91  Am.  Dec.  451  ; 
Matter  of  Valentine  72  N.  Y.  184,  187. 

2  Enghsh  V.  Smock,  34  Ind.  115,  119;  7  Am.  Rep.  215. 

'  Doctor  V.  Hartman,  74  Ind.  221,  225  ;  Foist  v.  Coppin,  35  In<l.  47:'.; 
Brown  v.  Goble,  97  Ind.  86. 


94 


GENERAL    PRINCIPLES    AFFECTIXG    JURISDICTION. 


judgment  is  given,  and  the  mode  in  which  it  shall  be  done 
is  provided,  it  can  not  be  done  in  any  other  way.' 

Where  the  right  to  proceed  under  a  statute  is  given  only 
to  certain  designated  persons,  or  class  of  persons,  a  party 
seeking  relief  under  it  must  bring  himself  within  its  pro- 
visions, and  the  fact  that  he  is  one  of  the  persons  entitled 
to  take  advantage  of  the  statute  must  appear  on  the  face 
of  the  proceedings,  or  the  court  will  be  without  juris- 
diction.^ 

Where  a  court  of  general  jurisdiction  has  special  au- 
thority conferred  upon  it  by  statute,  it  is  so  far  a  court  of 
inferior  or  special  jurisdiction,  and  is  governed  by  the 
same  rules,  so  far  as  it  attempts  to  exercise  such  special 
authority.^ 

If  the  special  jurisdiction  conferred  upon  a  court, 
whether  of  inferior  or  superior  jurisdiction,  is  summary 
and  extraordinary  in  its  nature,  the  requirements  of  the 
statute  must  be  strictly  complied  with.*  In  other  cases, 
not  summary  in  their  nature,  a  substantial  compliance 
with  the  statute  is  usually  held  to  be  sufficient.* 

1  Smith  V.  Chandler,  13  Ind.  513;  Doctor  v.  Hartman,  74  Ind.  221,  225; 
Foist  V.  Coppin,  35  Ind.  473;  Brown  v.  Goble,  97  Ind.  86. 

^  Shivers  v.  Wilson,  5  Harris  &  Johns.  130 ;  9  Am.  Dec.  497. 

3  Gunn  V.  Howell,  27  Ala.  663;  62  Am.  Dec.  785. 

^  Thatcher  v.  Powell,  6  Wheat.  119,  127;  Galpin  v.  Page,  85  U.  S.  .350. 

^  White  V.  Conover,  5  Blkf.  (Ind.)  462;  Morrow  v.  Weed,  4  la.  77;  66 
Am.  Dec.  122. 

"There  is  no  difficulty  in  proving  or  in  admitting  the  common  rule  in 
relation  to  inferior  jurisdiction  and  special  powers;  the  difficulty  lies 
in  the  api)lication  of  the  rule  to  details.  In  reference  to  the  exercise  of 
a  statutory  power,  we  find  various  adjectives  used,  such  as  'closely,' 
'strictly,'  'rigidly,'  'exactly.'  These  are  used  by  counsel.  They  are 
used  in  the  head  notes  of  cases,  and  not  unfrequently  in  the  opinions 
of  the  courts.  Now,  if  they  mean  any  thing,  it  is  that  the  authority  is 
to  be  exercised  literally ;  and  yet  it  is  believed  that  not  a  case  can  be 
found  in  which  a  court  has  said  that  such  a  power  must  be  followed 
with  literal  exactness — that  is,  literally.  The  truth  is,  that  the  rule, 
stripped  of  this  verbiage  and  divested  of  expletives,  is  that  when  a 
special  authority  or  power  is  given,  and  the  manner  of  its  exercise  is 
pointed  out,  the  power  or  authority  must  be  pursued  in  the  manner 
dictated.  It  is  probable  that  no  court  has  ever  held  that  the  slightest 
possible  deviation  is  fatal,  and  yet  this  is  the  inevitable  consequence  if 
the  use  of  the  above  adjectives  is  authoritative.     The  only  true  rule 


SPECIAL    AND    INFERIOR    JURISDICTION,  ETC.  95 

Where  a  special  mode  of  acquiring  jurisdiction  of  tlie 
person  of  a  non-resident  defendant,  other  than  by  personal 
service,  or  in  any  mode  not  according  to  the  course  of  the 
common  law,  is  provided  for,  it  is  held  that  whether  the 
court  seeking  to  acquire  jurisdiction  is  one  of  general  or 
special  jurisdiction  a  strict  and  literal  compliance  with  the 
statutory  provisions  is  necessary.^ 

of  construction  in  this  respect,  and  that  which  the  courts  have  some- 
times in  terms,  and  uniformly  in  practice,  adopted,  is  that  the  power  is 
to  be  exercised  substantially  in  the  manner  prescribed.  These  ideas 
will  be  adverted  to  and  illustrated  hereafter  under  the  points  made  and 
the  cases  cited."     Morrow  i\  Weed,  4  la.  77;  66  Am.  Dec.  122,  124. 

1  Galpin  v.  Page,  85  U.  S.  350;  McMinn  v.  Whelan,  27  Cal.  300;  Jordon 
V.  Giblin,  12  Cal.  100;  Ricketson  v.  Richardson,  26  Cal.  149. 

In  the  case  of  Galpin  v.  Page,  85  U.  J?.  350,  a  leading  case  on  this  sub- 
ject, the  Supreme  Court  of  the  United  States  thus  stated  the  law: 
"  When,  therefore,  by  legislation  of  a  state,  constructive  service  of  pro- 
cess by  publication  is  substituted  in  place  of  personal  citation,  and  the 
court,  upon  such  service,  is  authorized  to  proceed  against  the  person  of 
an  absent  party,  not  a  citizen  of  the  state  nor  found  within  it,  every 
principle  of  justice  exacts  a  strict  and  literal  compliance  with  the  statu- 
tory provisions.  And  such  has  been  the  ruling,  we  believe,  of  the 
courts  of  every  state  in  the  Union.  It  has  been  so  held  by  the  Supreme 
Court  of  California  in  repeated  instances.  In  Jordan  v.  Giblin,  12  Cal. 
100,  decided  in  1859,  service  of  publication  was  attempted,  and  the  court 
said  that  it  had  already  held,  '  in  proceedings  of  this  character,  where 
service  is  attempted  in  modes  different  from  the  course  of  the  common 
law,  that  the  statute  must  be  strictly  pursued  to  give  jurisdiction.  A 
contrary  course  would  encourage  fraud  and  lead  to  oppression.'  In 
Ricketson  v.  Richardson,  26  Cal.  149,  decided  in  1864,  the  court,  refer- 
ring to  the  section  of  the  statute  authorizing  service  by  publication, 
said:  "These  sections  are  in  derogation  of  the  common  law,  and  must 
be  strictly  pursued  in  order  to  give  the  court  jurisdiction  over  the 
person  of  Mie  defendant.  A  failure  to  comply  with  the  rule  there  pre- 
scribed in  any  particular  is  fatal  where  it  is  not  cured  by  an  appearance.' 
In  McMinn  r.  Whelan,  27  Cal.  300,  decided  in  1866,  the  plaintiff  in 
ejectment  traced  his  title  from  one  Maume.  The  defendants  endeav- 
ored to  show  that  the  title  had  passed  to  one  of  them  under  a  previous 
judgment  against  Maume.  This  j  udgment  was  recovered  against  Maume 
and  others,  who  were  non-residents  of  the  state,  upon  service  of  sum- 
mons by  publication.  It  appeared  from  the  record  that  a  supplemental 
complaint  had  been  filed  in  the  action,  and  that  the  summons  publishetl 
was  issued  upon  the  original  complaint,  and  not  after  that  had  been 
superseded  by  the  supplemental  complaint.  It  was  objected  that  the 
publication  thus  made  was  insnlhcient  to  give  the  court  jurisdiction  of 
the  person  of  the  absent  defendants;  the  objection  was  answered  by 


96  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

The  question  sometimes  arises  whether  a  mere  recital 
in  the  record  that  the  steps  necessary  to  give  jurisdiction 
have  been  taken  or  have  been  waived,  when  they  are  such 

the  position  that  the  judgment  could  not  be  questioned  collaterally  for 
the  reason  that  the  jurisdiction  of  a  court  of  general  or  superior  juris- 
diction would  be  presumed  in  the  absence  of  evidence  on  the  face  of 
the  record  to  the  contrary.  But  the  court  held  the  objection  well 
taken,  and  after  referring  to  the  case  of  Peacock  v.  Bell,  in  Saunders, 
said  that  that  case  '  involved  the  question  of  jurisdiction  as  to  the  sub- 
ject-matter of  the  action  and  not  as  to  the  person  of  the  defendant,  and 
it  may  be  doubted  if  a  case  can  be  found  which  sanctions  any  intend- 
ment of  jurisdiction  over  the  person  of  the  defendant  when  the  same 
is  to  be  acquired  by  a  special  statutory  mode  without  personal  service 
of  process.  If  jurisdiction  of  the  person  of  the  defendant  is  to  be  ac- 
quired by  publication  of  the  summons  in  lieu  of  personal  service,  the 
mode  prescribed  must  be  strictly  pursued.' 

"But  it  is  said  that  the  court  exercises  the  same  functions  and  the 
same  power,  whether  the  service  be  made  upon  the  defendant  person- 
ally or  by  publication,  and  that,  therefore,  the  same  presumption  of 
jurisdiction  should  attend  the  judgment  of  the  court  in  the  one  case  as 
in  the  other.  This  reasoning  would  abolish  the  distinction  in  the  pre- 
sumptions of  law  when  applied  to  the  proceedings  of  a  court  of  general 
jurisdiction,  acting  within  the  scope  of  its  general  powers,  and  when 
applied  to  its  proceedings  had  under  special  statutory  authority.  And, 
indeed,  it  is  contended  that  there  is  no  substantial  ground  for  any  dis- 
tinction in  such  cases.  The  distinction,  nevertheless,  has  long  been 
made  by  courts  of  the  highest  character,  both  in  this  country  and  in 
England,  and  we  had  supposed  that  its  existence  was  not  open  to  dis- 
cussion. '  However  high  the  authority  to  whom  a  special  statutory 
power  is  delegated,'  says  Mr.  Justice  Coleridge  of  the  queen's  bench, 
'  we  must  take  care  that  in  the  exercise  of  it  the  facts  giving  jurisdic- 
tion plainly  appear,  and  that  the  terms  of  the  statute  are  complied  with. 
The  rule  applies  equally  to  an  order  of  the  lord  chancellor  as  to  any  or- 
der of  petty  sessions.'     Christie  v.  Unwin,  3  Per.  &  Dav.  208. 

" '  A  court  of  general  jurisdiction,'  says  the  supreme  court  of  New 
Hampshire  '  may  have  special  and  summary  powers,  wholly  derived 
from  statutes,  not  exercised  according  to  the  course  of  the  common  law, 
and  which  do  not  belong  to  it  as  a  court  of  general  jurisdiction.  In 
such  cases,  its  decisions  must  be  regarded  and  treated  like  those  of  courts 
of  limited  and  special  jurisdiction.  The  jurisdiction  in  such  cases, 
both  as  to  the  subject-matter  of  the  judgment  and  as  to  the  persons 
to  be  affected  by  it,  must  appear  by  the  record ;  and  every  thing  will 
be  presumed  to  be  without  the  jurisdiction  which  does  not  distinctly 
appear  to  be  within  it.'     Morse  r.  Presby,  5  Fost.  302. 

"  The  qualifications  here  made  that  the  special  powers  conferred  are 
not  exercised  according  to  the  course  of  the  common  law,  is  important. 
When  the  special  powers  conferred  are  brought  into  action  according 


ORIGINAL    AND    APPELLATE    JURISDICTION.  97 

as  may  be  waived,  is  conclusive  or  even  prima  facie  evi- 
dence of  jurisdiction.  This  question  has  been  considered 
in  another  place.' 

The  question  as  to  what  are  and  what  are  not  courts  of 
inferior  or  special  jurisdiction  has  also  received  attention 
elsewhere.* 

21.  Original  and  appellate  jurisdiction. — Original  juris- 
diction is  that  which  is  conferred  upon  or  inherent  in  a 
court  in  the  first  instance.  Appellate  jurisdiction  is  the 
power  to  review  the  judgment,  order,  or  decree  of  some  in- 
ferior court,^ 

"Appellate  jurisdiction  is  the  authority  of  a  superior 
tribunal  to  review,  reverse,  correct,  or  affirm  the  decisions 
of  an  inferior  judicial  tribunal  in  cases  where  such  de- 
cisions are  brought  before  the  superior  court  pursuant  to 
law."  * 

"  The  essential  criterion  of  appellate  jurisdiction  is  that 

to  the  course  at  that  law ;  that  is,  in  the  usual  form  of  common  law 
and  chancery  proceedings,  by  regular  process  and  personal  service, 
where  a  personal  judgment  or  decree  is  asked,  or  by  seizure  or  attach- 
ment of  the  property  where  a  judgment  in  rem  is  sought,  the  same  pre- 
sumption of  jurisdiction  will  usually  attend  the  judgments  of  the 
court  as  in  cases  falling  within  its  general  powers.  Such  is  the  purport 
of  the  language  and  decision  of  this  court  in  Harvey  v.  Tyler,  2  Wall. 
332.  But  where  the  special  powers  conferred  are  exercised  in  a  special 
manner,  not  according  to  the  course  of  the  common  law,  or  where  the 
general  powers  of  the  court  are  exercised  over  a  class  not  within  its 
ordinary  jurisdiction  upon  the  performance  of  prescribed  conditions, 
no  such  presumption  of  jurisdiction  will  attend  the  judgment  of  the 
court.  The  facts  essential  to  the  exercise  of  the  special  jurisdiction 
must  appear  in  such  cases  upon  the  record. 

"  The  extent  of  the  special  jurisdiction  and  the  conditions  of  its  ex- 
ercise over  subjects  or  persons  necessarily  depend  upon  the  the  terms 
in  which  the  jurisdiction  is  granted,  and  not  upon  the  rank  of  the  court 
upon  which  it  is  conferred.  Such  jurisdiction  is  not,  therefore,  tin- 
less  to  be  strictly  pursued  because  the  same  court  may  possess  over 
other  subjects  or  other  persons  a  more  extended  and  general  juris- 
diction." 

'  Post,  sees.  23,  25.  '  Ante,  sec.  7. 

^  Anderson's  Die.  of  Law,  580.  *  Elliott's  App.  Pro.,  sec.  16. 

7 


98  GENERAL    PRINCIPLES    AFFECTING    JL'RISDICTTON, 

it  revises  and  corrects  the  proceedings  in  a  cause  already 
instituted  and  does  not  create  the  cause.  In  reference  to 
judicial  tribunals,  an  appellate  jurisdiction,  therefore, 
necessarily  implies  that  the  subject-matter  has  already  been 
instituted  in  and  acted  upon  by  some  other  court  whose 
judgment  or  proceedings  are  to  be  revised.  This  appellate 
jurisdiction  may  be  exercised  in  a  variety  of  forms,  and, 
indeed,  in  any  form  which  the  legislature  may  choose  to 
prescribe,  but  still  the  substance  must  exist  before  the  form 
can  be  applied  to  it."  ' 

Usually  the  jurisdiction  extends  only  to  final  judgments, 
orders,  and  decrees,  but  this  is  subject  to  legislative  regula- 
tion, and,  in  some  of  the  states,  the  right  of  appeal  is  given 
from  interlocutory  decrees  and  orders.  Independent,  how- 
ever, of  some  statutory  enactment  extending  the  right,  it 
is  confined  to  final  judgments,  decrees,  or  orders,  and 
definitions  of  appellate  jurisdiction  usually  so  limit  it.^ 

But  as  the  right  of  appeal  is  entirel^^  statutory  it  may 
be  extended  at  the  will  of  the  law-making  power.  In  this 
appeals  difi'er  from  writs  of  error  which  existed  at  common 
law  and  may  be  exercised  independent  of  statute.  But 
this  common  law  right  to  a  writ  of  error  may  be  modified 
or  entirely  taken  away  by  statute,  and  in  some  of  the  states 
it  has  been  abolished.  In  those  states  in  which  writs  of 
error  are  abolished  appellate  courts  can  only  obtain  juris- 
diction by  appeal  in  the  manner  and  at  the  time  prescribed 
by  statute. 

A  court  may  be  vested  with  both  original  and  appellate 
jurisdiction,  and  courts  whose  jurisdiction  is  essentially 
and  so  far  as  their  express  authority  is  concerned  entirely 
appellate,  are  possessed  of  certain  inherent  and  incidental 
powers,  which  belong  to  every  court  of  general  or  superior 
jurisdiction,  whether  its  jurisdiction  be  original  or  ap- 
pellate.^ 

But  little  need  be  said  in  this  connection  as  to  the 
original  jurisdiction  of  courts.     The  subject  has  been  suf- 

1  2  Story  Const.,  sec.  17G1. 

*  Anderson's  Die.  of  Law,  580;  Elliott's  App.  Pro.,  sec.  80. 

^  Post,  sec.  27. 


ORIGINAL    AND    APPELLATE    JURISDICTION.  99 

ficiently  covered  in  the  several  sections  contained  in  this 
chapter.  The  subject  of  appellate  jurisdiction  calls  for 
some  special  consideration,  but  it  is  only  intended  to  treat 
of  general  principles  affecting  all  courts,  without  attempt- 
ing to  go  into  details  or  the  question  as  to  the  char- 
acter or  extent  of  the  jurisdiction  of  any  particular  court 
or  class  of  courts.  Certain  steps  are  necessary  to  be  taken 
in  order  to  vest  appellate  courts  with  jurisdiction.  These 
are  usually  provided  for  by  statute. 

In  appeals  to  courts  of  last  resort  the  cases  are  usually 
tried  by  the  record,  and  it  must  appear  on  the  face  of  the 
record  that  the  steps  necessary  to  give  the  court  jurisdic- 
tion of  the  appeal  have  been  taken.* 

The  right  of  appeal  is  statutory  and  the  statute  must  be 
followed  or  the  appellate  court  will  have  no  jurisdiction.^ 
All  necessary  steps  must  be  taken  within  the  time  pre- 
scribed by  law.^ 

The  time  can  not  be  extended  by  consent  of  parties.* 
Nor  can  the  time  be  extended  by  the  appellate  court.^  But 
the  time  does  not,  under  some  of  the  codes,  run  against 
parties  laboring  under  legal  disabilities.*' 

Where  the  judgment  appealed  from  is  joint  the  neces- 
sary steps  must  be  taken,  within  the  time,  by  all  of  the 
judgment  defendants,  or,  if  any  refuse  to  join  in  the  ap- 
peal, notice  to  them  must  be  given,  where  it  is  required, 
or  the  appeal  is  not  effectual.     An  appearance  and  refusal 

'  Elliott's  App.  Pro.,  sec.  12. 

-'  Zechendorf  r.  Zecliindorf,  1  Ariz.  401 ;  25  Pac.  Rep.  648. 

■'•  Elliott's  App.  Pro.,  sees.  Ill,  128;  Bornheimer  c.  Baldwin,  42  Cal.  27; 
Jarvis  v.  Hamilton,  37  Wis.  87  ;  Clapp  r.  Handey,  97  N.  Y.  610;  Stark  v. 
Jenkins,  1  AVash.  Ter.  421  ;  Villabolos  v.  United  States,  6  How.  81  ;  Zech- 
endorf V.  Zechendorf,  1  Ariz.  401  ;  25  Pac.  Rep.  648 ;  Joyce  v.  Dickey, 
104  Ind.  18:1;  :i  N.  E.  Rep.  252;  Houston  r.  Ducker,  86  Ky.  12:};  5  S.  W. 
Rep.  382. 

*  Stark  r.  Jenkins,  1  Wash.  Ter.  421  ;  Flory  v.  Wilson,  83  Ind.  391  ; 
Coggswell  r.  Hogan,  1  Wasli.  St.  4  ;  23  Pac.  Rep.  8:55  ;  Herrick  r.  Racine 
Warehouse  Co.,  43  Wis.  93. 

^  Wait  V.  Van  Allen,  8  N.  Y.  319 ;  Verges  '•.  Roush,  1  Neb.  113:  Lavelle 
'■.  Skelly,  24  Hun  (N.  Y.),  642. 

^  Hunting  v.  Hooper,  59  Ind.  589;  Patterson  v.  Woodland,  28  Neb.  250; 
44  N.  W.  Rep.  112. 


100  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

to  join  in  the  appeal  by  such  defendants  after  the  time 
allowed  will  not  cure  the  defect  of  failing  to  give  them  the 
required  notice.^ 

Where  an  appeal  has  failed  for  want  of  some  of  the 
steps  necessary  to  perfect  the  same  this  does  not  prevent 
the  party  from  taking  a  second  appeal  within  the  time 
prescribed.-  But  it  is  otherwise  where  the  first  appeal  was 
sufiicient  to  transfer  the  case  to  the  appellate  court.  There 
can  not  be  a  second  appeal  when  the  first  is  pending. 

Where  an  appeal  or  writ  of  error,  is  allowed  upon  some 
action  of  the  court  from  which  the  appeal  is  taken,  as,  for 
example,  a  certificate  that  the  cause  is  of  such  importance 
as  to  warrant  an  appeal,  such  action  must  be  taken  within 
the  time  prescribed  or  the  appeal  can  not  be  taken  or  the 
writ  of  error  allowed.^ 

If  it  appears  affirmatively  from  the  record  that  the  court 
has  not  jurisdiction  the  court  will  dismiss  the  appeal,  or, 
when  the  law  requires  it,  remand  the  cause  to  another 
court  upon  motion  of  either  party  or  upon  its  own  motion 
whenever  brought  to  its  attention.^ 

Where  the  question  of  jurisdiction  depends  upon  the 
proceedings  in  the  court  below,  the  record  of  such  pro- 
ceedings, made  by  the  trial  court,  is  conclusive,  and  can 
not  be  controverted  or  changed  by  other  evidence.^  The 
court  has  jurisdiction  only  to  determine  such  questions  as 
are  presented  by  the  record.^  Authority  to  decide  ques- 
tions, not  presented  by  the  record,  can  not  be  given  by 
consent  of  the  parties.^  And  where  the  record  shows  that 
the  subject-matter  of  the  action  is  not  within  the  appellate 
jurisdiction  of  the  court,  consent  of  parties  can  not  give 
it  jurisdiction.^     Nor  can  an  appeal  be  taken  by  consent 

1  Holloran  v.  Midland  Ry.  Co.,  28  N.  E.  Rep.  549. 
'^  United  States  v.  Cury,  6  How.  106. 

3  MacLachlan  r.  McLaughlin,  126  111.  427;  18  N.  E.  Rep.  544. 
*  Elliott's  App.  Pro.,  sec.  12. 

^  McAurthur  v.  Schultz,  78  la.  364  ;  4o  N.  W.  Rep.  223. 
^  Elliott's  App.  Pro.,  sec.  13. 

'  Ante,  sees.  10, 12  ;  Elliott's  App.  Pro.,  sec.  13;  Board  of  Commissioners 
V.  Newman,  35  Ind.  10. 

8  Crane  r.  Farmer,  14  Colo.  294  ;  23  Pac.  Rep.  455. 


ORIGINAL    AXD    APPELLATE    JURISDICTION.  101 

to  a  court  not  having  jurisdiction.'  In  order  to  call  for 
action  on  the  part  of  an  appellate  court,  it  must  appear 
that  there  is  an  actual  controversy  between  the  parties. 
And  although  there  may  be  nothing  in  the  record  disclos_- 
ing  the  fact,  if  the  court  is  satisfied  that  the  question  })re- 
sented  is  not  actually  in  controversy  between  the  parties, 
but  is  brought  up  merely  to  obtain  the  decision  of  the 
court  upon  an  abstract  or  hypothetical  question,  the  ap- 
peal will  not  be  entertained.^  An  appeal  will  lie  only  from 
the  decision  of  a  court,  and  not  from  the  action  of  minis- 
terial or  other  officers.^  And  where  a  board  of  officers  act 
both  in  a  judicial  and  a  legislative  capacity,  an  appeal  can 
only  be  had  from  a  decision  rendered  by  such  board,  as  a 
court,  in  an  adversary  proceeding.*  There  can  be  no  ap- 
peal except  from  a  decision  upon  a  judicial  question.^ 

Under  the  practice  in  most  of  the  states,  and  in  the  fed- 
eral courts,  an  assignment  of  errors  must  be  filed  in  the 
appellate  court  in  order  to  give  the  court  jurisdiction.  It 
is  the  pleading  of  the  appellant,  and  is  as  necessary  to 
give  the  appellate  court  authority  to  act  as  it  is  that  a 
declaration,  petition,  or  complaint,  be  filed  in  the  court  be- 
low in  order  to  give  that  court  jurisdiction.^  And  as  the 
filing  of  the  assignment  of  errors  is  a  jurisdictional  step, 
it  must  be  taken  within  the  time  prescribed  by  law.^  It  is 
held,  however,  in  some  of  the  cases,  that  a  party  may  be 
relieved  from  the  consequences  of  a  failure  to  file  the  as- 
signment of  errors  within  the  time  prescribed  by  law 
where  it  appears  that  such  filing  was  prevented  by  fraud 
on  the  part  of  the  appellee,  or  by  accident.  This  is 
placed  upon  the  ground  that  the  court  has  the  inherent 
power  to  protect  its  own  process,  and  maintain  its  juris- 

1  Dykeman  v.  Budd,  3  Wis.  640. 

'  Elliott's  App.  Pro.,  sec.  14. 

3  Elliott's  App.  Pro.,  sees.  15,  16,  17  ;  Auditor  of  State  r.  A.  T.  &  S.  F. 
R.  R.  Co.,  6  Kan.,  500,  504 ;  7  Am.  Rep.  575. 

*  1  Work's  Ind.  Pr.  &  PL,  sec.  34 ;  Moffit  v.  The  State,  40  Ind.  217 ; 
Hanna  v.  Board  of  Commissioners,  29  Ind.  170;  Farley  r.  Board  of 
Supervisors,  126  Ind.  468;  26  N.  E.  Rep.  174. 

^Elliott's  App.  Pro.,  sec.  78.  *  Elliott's  App.  Pro.,  sec.  303. 


10'2  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

diction  against  fraudulent  interference.^  In  order  that  the 
appellate  court  may  take  jurisdiction  of  a  case,  the  court 
from  which  the  appeal  is  taken  must  have  had  jurisdiction 
of  the  subject-matter.^  The  question  as  to  the  jurisdiction 
of  the  lower  court  may  be  raised  for  the  first  time  in  the 
appellate  court.'  Where  an  appeal  is  taken  to  a  court 
that  must  try  the  same  de  novo,  an  amendment  of  the 
complaint  in  the  appellate  court  by  which  the  amount  in 
controversy  is  increased  beyond  the  jurisdiction  of  the 
court  in  which  the  action  is  brought,  will  oust  the  juris- 
diction of  the  appellate  court.* 

Provision  is  sometimes  made  for  the  transfer  of  actions 
from  an  inferior  to  a  superior  court  where  an  issue  is  raised, 
not  within  the  jurisdiction  of  the  court  before  which  the  ac- 
tion is  pending,  as  for  example,  where  the  title  to  real  estate 
is  brought  in  question  before  a  justice  of  the  peace.  In  such 
cases  it  must  clearly  appear  that  an  issue  has  been  presented 
that  authorizes  the  transfer  of  the  causeorthecourt  to  which 
the  action  is  sent  \\\\\  have  no  jurisdiction.^  Jurisdiction 
thus  conferred  is  original,  and  not  appellate,  and  the  court 
to  which  the  action  is  certified  tries  the  same  as  if  it  had 
been  brought  originally  in  that  court.^  Therefore,  if  the 
court  to  which  the  action  is  certified  would  not  have  had 
jurisdiction  if  the  action  had  been  commenced  therein, 
the  determination  of  the  other  court  that  it  has  not  juris- 
diction, and  the  certification  of  the  case  to  the  higher  court 
can  give  the  latter  no  jurisdiction.^  And  if  the  defendant 
who  has  made  the  issue  in  the  lower  court  that  ousted  its 

'  Smyth  V.  Boswell,  117  Ind.  365 ;  20  N.  E.  Rep.  263.     Post,  sec.  27. 

"  Ante,  sec.  12 ;  Post,  sec.  22 ;  Felt  v.  Felt,  19  Wis.  208 ;  Stringham  -. 
Board  of  Supervisors,  24  Wis.  594;  Sexton  v.  Willard,  27  Wis.  465;  El- 
liott's App.  Pro.,  sec.  79. 

'  Post,  sec.  22 ;  Cerro  Gordo  County  v.  Wright  County,  59  la.  485 ;  13 
N.  W.  Rep.  645. 

*  Ante,  sec.  16  ;  Pritchard  v.  Bartholomew,  45  Ind.  219  ;  Mays  v.  Dooley, 
59  Ind.  287. 

^  Post,  sec.  24 ;  Verbeck  v.  Verbeck,  6  Wis.  157  ;  City  of  Santa  Cruz  v. 
Santa  Cruz  R.  R.  Co.,  56  Cal.  143;  Arroyo  Ditch,  etc.,  Co.  v.  Superior 
Court,  92  Cal.  47  ;  28  Pac.  Rep.  54. 

*  Arroyo  Ditch,  etc.,  Co.  v.  Superior  Court,  92  Cal.  47  ;  28  Pac.  Rep.  54. 


HOW    QUESTION    OF    JURISDICTION    MAY    BE    RAISED.         103 

jurisdiction,  abandons  such  issue  in  the  court  to  which  the 
same  is  certified,  the  latter  court  thereby  loses  jurisdiction 
of  the  action.^ 

22.  When  and  how  question  of  jurisdiction  may  be 
RAISED. — The  time  when  and  the  manner  in  which  the 
question  of  jurisdiction  may  be  raised  depends  in  part 
upon  the  character  of  the  court,  whether  it  be  one  of  su- 
perior and  general  jurisdiction,  or  one  of  inferior  or  spe- 
cial jurisdiction.  The  distinction  between  these  dift'erent 
kinds  of  courts  has  been  considered,^  as  well  as  the  differ- 
ence in  the  manner  of  proving  and  disproving  the  juris- 
diction of  each,'  and  the  presumptions  that  prevail  in  aid 
of  the  jurisdiction  of  courts  of  general  jurisdiction.^ 

The  right  also  depends,  in  part,  upon  whether  it  is  ju- 
risdiction of  the  subject-matter  or  of  the  person  that  is 
assailed.  As  a  rule,  the  failure  to  object  to  the  jurisdic- 
tion of  the  person,  at  the  proper  time,  where  the  party 
appears,  is  a  submission  to  the  jurisdiction  of  the  court, 
and  waives  the  right  to  contest  such  jurisdiction  at  any 
subsequent  time.*  Therefore,  if  a  defendant  believes  that 
the  court  has  not,  for  any  reason,  obtained  jurisdiction  of 
his  person,  he  should,  if  he  appears  at  all,  enter  his  ap- 
pearance for  the  special  purpose  of  objecting  to  the  juris- 
diction, and  at  once  enter  such  objection.^  But  if  he  is 
satisfied  that  the  court  has  not  jurisdiction  of  his  person, 
and  that  jurisdiction  will  not  be  presumed,  he  need  not 
appear  at  all;  and  any  judgment  rendered  against  him, 
without  jurisdiction,  is  void  the  same  as  if  the  court  were 
without  jurisdiction  of  the  subject-matter.^ 

The  effect  of  a  general  appearance,  after  having  ap- 

'  City  of  Santa  Cruz  v.  Santa  Cruz  R.  R.  Co.,  56  Cal.  143. 

^  Ante,  sec.  7.  ^  Post,  sec.  23.  *  Post,  sec.  25. 

''Ante,  sec.  13;  Caughey  v.  Vance,  3  Pinnoy  (Wis.),  275;  Newell  v. 
Gatling,  7  Ind.  147;  Puterbaugli's  PI.  &  Prac.  (Com.  Law),  144;  Day  v. 
Henry,  104  Ind.  .324;  4  X.  E.  Rep.  44;  Kenney  v.  Greer,  13  111.  432;  54 
Am.  Dec.  439;  Holloway  v.  Freeman,  22  111.  197,  202. 

«  Ante,  sec.  13;  New  Albany,  etc.,  R.  R.  Co.  v.  Combs,  13  Ind.  490; 
Michels  v.  Stork,  44  Mich.  2  ;  Baily  v.  Schrader,  34  Ind.  260. 

^  Post.  sees.  23,  25,  26. 


104  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

peared  specially  and  made  objection,  which  has  been 
overruled,  is  the  same  as  if  no  such  objection  had  been 
made.  By  appearing  afterward  and  contesting  the  case 
on  the  merits,  a  defendant  loses  his  right  to  contest  the 
ruling  of  the  court  below  on  his  objection  to  the  jurisdic- 
tion, on  appeal.  If  a  party  wishes  to  insist  upon  the  ob- 
jection that  he  is  not  in  court,  he  must  keep  out  for  all 
purposes  except  to  make  that  objection.' 

If  jurisdiction  depends  upon  the  residence  of  the  defend- 
ants, one  of  whom  resides  within  the  jurisdiction,  and  the 
action  is  dismissed  as  to  him,  the  non-resident  defendants 
may  oust  the  jurisdiction  of  the  court  by  pleading  and 
proving  that  the  resident  defendant  was  made  a  party  for 
the  fraudulent  purpose  of  giving  the  court  jurisdiction. 
The  appearance  of  the  non-resident  parties  under  such 
circumstances  will  not  estop  them  from  raising  the  ques- 
tion of  jurisdiction  as  soon  as  the  fraud  is  discovered.^ 

A  distinction  is  made,  with  respect  to  the  effect  of  an 
appearance,  between  a  service  made  within  the  jurisdic- 
tion of  the  court  and  one  made  at  a  place  where  it  could 
not  legally  be  made,  it  being  held  in  the  latter  case  that  a 
subsequent  appearance  and  defense  on  the  merits  does  not 
waive  the  objection  to  the  jurisdiction.^ 

1  Thayer  v.  Dove,  8  Blkf.  (Ind.)  567  ;  Lowe  v.  Stringham,  14  Wis.  222, 
225 ;  Blackwood  v.  Jones,  27  Wis.  498,  500 ;  Caughey  v.  Vance,  3  Pinney 
(Wis.),  275,  278;  New  Albany,  etc.,  R.  R.  Co.  v.  Combs,  13  Ind.  490; 
Eddy  V.  Lafayette,  49  Fed.  Rep.  807 ;  Hohl  v.  Town  of  AVestford,  33  Wis. 
328. 

2  Shryer  r.  Miner,  20  Ind.  175. 

'  "  The  right  of  the  defendant  to  insist  upon  the  objection  to  the  il- 
legality of  the  service  was  not  waived  by  the  special  appearance  of 
counsel  for  him  to  move  the  dismissal  of  the  action  on  that  ground,  or 
what  we  consider  as  intended,  that  the  service  be  set  aside  ;  nor,  when 
that  motion  was  overruled,  by  their  answering  for  him  to  the  merits  of 
the  action.  Illegality  in  a  proceeding  by  which  jurisdiction  is  to  be  ob- 
tained is  in  no  case  waived  by  the  appearance  of  the  defendant  for  the 
purpose  of  calling  the  attention  of  the  court  to  such  irregularity ;  nor 
is  the  objection  waived  when  being  urged  it  is  overruled,  and  the  de- 
fendant is  thereby  compelled  to  answer.  He  is  not  considered  as  aban- 
doning his  objection  because  he  does  not  submit  to  further  proceedings 
without  contestation.     It  is  only  where  he  pleads  to  the  merits  in  the 


I 


HOW    QUESTION    OF    JURISDICTION    MAY    BE    RAISED.        105 

An  appearance  after  a  default  and  making  an  ineft'eetual 
motion  to  set  aside  the  judgment  will  not  operate  as  a 
waiver  of  defective  service.^     Nor  will  an  appearance  and 

first  instance,  without  insisting  upon  the  illegality,  that  the  objection  is- 
deemed  to  be  waived."     Harkness  v.  Hyde,  98  U.  S.  476,  479. 

The  case  of  Harkness  v.  Hyde  was  distinguished  from  an  ordinary  de- 
fect, or  want  of  service,  by  the  circuit  court  of  appeals,  eighth  circuit, 
in  Eddy  v.  Lafayette,  49  Fed.  Rep.  809,  in  the  following  language :  "  We 
are  also  of  the  opinion  that  the  jurisdiction  of  the  lower  court  may  be 
maintained  on  the  further  ground  that,  by  answering  to  the  merits  and 
going  to  trial  after  the  motion  to  quash  the  service  of  summons  had 
been  overruled,  the  receivers  submitted  to  the  jurisdiction  of  the  court, 
and  should  not  be  permitted  to  question  its  jurisdiction  in  this  court. 
In  so  holding,  we  have  not  overlooked  the  decision  in  Harkness  f. 
Hyde,  98  U.  S.  476,  but  we  believe  that  case  may  be  fairly  distinguished 
from  the  one  at  bar.  In  Harkness  v.  Hyde  the  process  involved  had 
not  only  been  served  outside  of  the  territorial  jurisdiction  of  the  court, 
and  within  the  limits  of  an  Indian  reservation,  but  the  officer  who 
served  the  process  was  guilty  of  a  violation  of  law  in  entering  the  res- 
ervation for  that  purpose.  In  the  case  at  bar  the  service  was  had  at  a 
place  within  the  jurisdiction  of  the  court  from  which  the  process  em- 
anated. It  also  had  jurisdiction  of  the  subject-matter  of  the  suit,  by 
virtue  of  the  fact  that  the  negligent  acts  complained  of  had  been  com- 
mitted within  the  Indian  Territory.  Under  these  circumstances,  we 
are  unable  to  concede  that  tlie  receivers  may  raise  the  question  of  ju- 
risdiction in  this  court  after  pleading  to  the  merits,  and  entering  upon  a 
long  trial  in  the  lower  court.  It  is  a  general  rule  that  mere  defects  in 
the  service  of  process  may  be  waived  by  an  appearance,  where  the 
court  has  jurisdiction  of  the  subject-matter  of  the  controversy,  and  the 
defect  in  the  service  only  impairs  the  jurisdiction  over  the  person  of 
the  defendant.  Such  is  the  rule  in  the  State  of  Arkansas,  whose  laws 
have  been  extended  over  the  Indian  Territory,  and  such  is  also  the  rule 
in  other  states.  Railway  Co.  v.  Barnes,  35  Ark.  95 ;  Martfn  v.  Goodwin, 
34  Ark.  682;  Kronski  v.  Railway  Co.,  77  Mo.  368;  Rippstein  v.  Insur- 
ance Co.,  57  Mo.  86;  Estill  v.  Railroad  Co.,  41  Fed.  Rep.  853;  Railway 
Co.  r.  McBride,  141  U.  S.  127;  11  Sup.  Ct.  Rep.  982. 

■'  The  cases  are  very  exceptional  where  a  litigant  is  at  liberty  to  deny 
the  jurisdiction  of  a  court,  after  defending  on  the  merits,  and  taking 
the  chances  of  making  a  successful  defense  precisely  as  if  it  had  juris- 
diction. If  the  receivers  desired  to  raise  the  question  of  jurisdiction  in 
this  court,  we  are  of  the  opinion  that  they  should  have  refused  to  ap- 
pear in  the  lower  court ;  or,  having  appeared  for  the  purpose  of  moving 
to  quash  the  service  of  process,  that  they  should  have  abandoned  the 
case  when  their  motion  to  quash  the  service  was  overruled." 

>  Mills  V.  The  State,  10  Ind.  114;  Briggs  v.  Sneghau,  45  lud.  14. 


106  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

contest  of  the  amount  of  damages  after  a  default  operate 
as  such  waiver.^ 

It  is  only  where  he  desires  to  defend  the  action  that  it  is 
necessary  for  a  defendant  to  appear  specially  and  ohject  to 
the  jurisdiction. 

Objection  to  the  jurisdiction,  whether  of  the  subject- 
matter  or  the  person,  may  be  made  in  various  ways : 

(a)  By  motion  to  dismiss? 

Special  provision  is  made  for  the  dismissal  of  causes  for 
want  of  jurisdiction  in  the  federal  courts.^  And  for  re- 
manding a  cause,  in  case  of  removal,  to  the  state  court, 
where  the  cause  is  not  cognizable  in  the  federal  court.* 

It  is  held  that  where  the  objection  is  to  the  jurisdiction 
of  the  person,  and  does  not  appear  on  the  face  of  the  com- 
plaint, it  must  be  presented  by  a  plea  in  abatement  and 
not  by  motion.^  But,  where  proof  of  non-residence  and 
publication  is  made,  the  defendant  may,  on  motion,  estab- 
lish the  fact  that  he  is  a  resident  of  the  county,  and  thus 
defeat  the  jurisdiction  of  the  court  attempted  to  be  ob- 
tained by  constructive  notice.* 

Again,  it  is  held  that,  if  the  objection  is  that  the  sum- 
mons was  not  properly  served,  the  question  can  not  be 
raised  by  demurrer  or  answer,  but  must  be  presented  by 
motion.^ 

(b)  Under  the  codes,  if  the  court  is  one  of  general  jurisdic- 
tion, and  the  want  of  jurisdiction  appears  on  the  face  of  the 
complaint,  the  objection  may  be  raised  by  demurrer.^ 

^  Briggs  V.  Sneghan,  45  Ind.  14,  18. 

^  Dixon  V.  Hill,  8  Ind.  147 ;  State  v.  Whitewater  Valley  Canal  Co.,  8 
Ind.  320  ;  Collins  v.  Collins,  37  Pa.  St.  387  ;  Branner  v.  Chapman,  11  Kan. 
118;  Kinnaman  r.  Kinnaman,  71  Ind.  417;  Parker  v.  Burrell,  3  Blkf. 
(Ind.)  411 ;  Allen  v.  Demarest,  41  N.  J.  Eq.  162 ;  2  Atl.  Rep.  655. 

»  Act  of  March  3,  1875,  ch.  137,  sec.  5  (18  Stat,  at  L.  472) ;  Foster's  Fed. 
Prac,  sees.  293,  391  ;  Vannerson  v.  Leverett,  31  Fed.  Rep.  376. 

*  Foster's  Fed.  Prac,  sec.  393 ;  Work's  Rem.  of  Causes,  sec.  10 ;  Sup. 
Rev.  Stat.  175,  sec.  5. 

*  Ludwick  V.  Beckamire,  15  Ind.  198;  HoUoway  v.  Freeman,  22  111. 
201 ;  Baily  v.  Schrader,  34  Ind.  260. 

6  Evans  v.  lies,  7  Ohio  St.  234. 

^  Nones  v.  Hope  Mut.  Life  Ins.  Co.,  5  How.  Prac.  96. 

*  Bliss's  Code  PL,  sees.  405,  406;  Godfrey  v.  Godfrey,  17  Ind.  6;  79  Am. 


HOW    QUESTION    OF    JURISDICTION    MAY    BE    RAISED.         107 

It  must  be  remembered,  however,  that,  so  far  as  com- 
mon-law actions  are  concerned,  the  right  to  raise  the  ques- 
;  tion  of  jurisdiction  by  demurrer  is  a  purely  statutory  one. 
At  common  law,  the  question  of  jurisdiction  could  not  be 
raised  by  demurrer,  but  must  be  entered  by  a  special  plea 
to  the  jurisdiction.^ 

It  would  seem  to  follow,  therefore,  that  in  a  United 
States  court,  sitting  as  a  common-law  court,  the  question 
.  must  be  raised  by  plea  and  not  by  demurrer.  But  it  is 
[>'  held  that  in  common  law  proceedings  the  practice  in  the 
state  courts  shall  control.  Under  this  rule,  where  the 
question  may  be  raised  by  demurrer  in  the  state  courts,  it 
may  be  raised  in  the  same  way  in  a  United  States  court 
sitting  in  that  state.^  And  it  is  further  held  that,  where 
the  citizenship  appears  on  the  face  of  the  petition  or  com- 
plaint and  shows  a  want  of  jurisdiction,  a  plea  in  abate- 
ment is  not  necessary,  but  the  question  may  be  raised  by 
demurrer  upon  a  special  appearance  entered  for  that  pur- 
pose, and  that  a  plea  in  abatement  is  only  necessary  where 
the  petition  or  complaint  alleges  the  facts  showing  juris- 
diction and  the  defendant  desires  to  controvert  the  aver- 
ment.^ 

In  a  court  of  equity,  the  question  of  jurisdiction  may  be 
raised  by  demurrer  where  no  sufficient  ground  is  shown  in 
the  bill  for  the  interference  of  a  court  of  equity.* 

The  demurrer  may  go  to  the  local  jurisdiction,  the  juris- 
diction of  the  subject-matter,  or  of  the  person.^ 

In  most,  if  not  all,  of  the  codes  of  the  several  states  in 
this  country,  the  equitable   rule  on  this  subject   has  been 

Dec.  448;  Govt  r.  Haven,  30  Conn.  190;  79  Am.  Dec.  244;  1  Work's  Ind. 
Pr.  &  PI.,  sec.  474;  Brownfield  r.  Weicht,  9  Ind.  394 ;  Boone's  Code  PL, 
sec.  47  ;  Keiser  v.  Yandes,  45  Ind.  174. 

1  Stephen  on  PL  83;  Roberts  r.  Lewis,  144  U.  S.  653;  12  Sup.  Ct.  Rep. 
781 ;  Sheppard  v.  Graves,  14  How.  505,  509. 

2  Roberts  v.  Lewis,  144  U.  S.  653;  12  Sup.  Ct.  Rep.  781. 

^  Susquehanna,  etc.,  Railroad  &  Coal  Co.  r.  Blatchford,  11  Wall.  172; 
Meyer  v.  Herrera,  41  Fed.  Rep.  65  ;  Halstead  r.  Manning,  34  Fed.  Rep. 
565. 

*  Story's  Eq.  PL,  sec.  472  ;  Foster's  Fed.  Prac.  108. 

*  Barton's  Suit  in  Eq.  83. 


108  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

adopted,  and  a  want  of  jurisdiction  is  made  a  ground  of 
demurrer. 

Under  the  chancery  practice,  it  is  held  that  after  a  de- 
fendant has  put  in  an  answer  to  a  bill,  submitting  himself 
to  the  jurisdiction  of  the  court,  without  objection,  it  is 
too  late  to  insist  that  the  complainant  has  a  perfect  remedy 
at  law,  unless  the  court  of  chancery  is  wholly  incompetent 
to  grant  the  relief  sought  by  the  bill.^ 

The  bill  may  be  dismissed  by  the  court,  on  its  own  mo- 
tion, on  the  ground  that  there  is  a  perfect  remedy  at  law, 
at  any  stage  of  the  proceedings,  but  the  party  must  raise 
the  question  by  demurrer  or  answer,  or  it  is  waived.^ 
But  a  different  rule  has  been  laid  down  under  the  codes, 
on  the  ground  that  such  matter  could  not  be  set  up  by 
answer.^ 

If  the  case  is  one  in  which  a  court  of  chancery  can  not 
afford  relief,  which  is  a  case  of  an  entire  want  of  jurisdic- 
tion, the  rule  is  the  same  as  in  a  court  of  law.  The  ob- 
jection is  not  waived  by  answering  and  going  to  trial  on 
the  merits,  but  may  be  raised  at  any  time.*  And,  where 
a  cause  of  action,  cognizable  at  law,  is  entertained  in 
equity  because  of  some  equitable  relief  sought,  and  under 
the  evidence  no  such  equitable  relief  can  be  granted,  the 
court  should  dismiss  the  action.^ 

If  the  want  of  jurisdiction  in  a  court  of  equity  does  not 
appear  on  the  face  of  the  bill,  it  should  be  presented  by 
plea  and  not  by  answer.^ 

It  is  held  in  Illinois  that,  where  the  summons  has  been 

*  Grandin  v.  Le  Roy,  2  Paige,  509 ;  Le  Roy  v.  Piatt,  4  Paige,  76  ;  Gum- 
ming V.  The  Mayor,  etc.,  11  Paige,  596;  Truscott  v.  King,  6  N.  Y.  147; 
Ryan  v.  Duncan,  88  111.  144 ;  Gifford  v.  Thorn,  7  N.  J.  Eq.  90 ;  Consoli- 
dated Roller  Mill  Co.  v.  Coombs,  39  Fed.  Rep.  25. 

2  Lehigh,  etc.,  Iron  Co.  v.  Trotter,  43  N.  J.  Eq.  185  ;  10  Atl.  Rep.  607. 
'  De  Bussierre  v.  Holladay,  55  How.  Pr.  210. 

*  Meux  V.  Anthony,  11  Ark.  411 ;  52  Am.  Dec.  274,  280;  Powell  v.  Wal- 
don,  89  N.  Y.  328,  333;  42  Am.  Rep.  301  ;  Graveley  v.  Graveley,  84  Va. 
145;  4  S.  E.  Rep.  218;  Buffalo  v.  Town  of  Pocahontas,  85  Va.  222;  7  S. 
E.  Rep.  238. 

*  Gamage  v.  Harris,  79  Me.  531 ;  11  Atl.  Rep.  422. 
«  Livingston  v.  Story,  11  Pet.  351,  393. 


HOW    QUESTION    OF    JURISDICTION    MAY    BE    RAISED.         109 

sent  to  a  foreign  county  in  the  state,  the  question  of  juris- 
diction must  be  raised  by  plea  in  abatement,  and  can  not 
be  raised  by  demurrer,  or  by  a  writ  of  error  after  default.^ 
And  the  plea  is  waived  if  not  presented  to  the  court  be- 
fore the  trial  is  commenced.^  But,  where  it  appears  from 
the  evidence  at  the  trial  that  a  case  against  a  foreign  cor- 
})oration  is  not  one  that  is  authorized  to  be  brought  in  the 
state  in  which  the  action  is  pending,  the  action  should  be 
dismissed  on  motion.^ 

If,  however,  the  defendant  relies  upon  the  fact  of  non- 
residence,  it  must  allege  the  fact  by  way  of  answer,  and 
a  party  can  not  move  to  dismiss  at  the  trial  on  that 
ground.* 

The  right  given  by  statute  to  have  suit  brought  in  the 
county  where  the  land,  the  title  to  which  is  in  contro- 
versy, is  situated  is  held,  in  some  of  the  cases,  to  be  a  per- 
sonal privilege  which  is  waived  by  a  failure  to  raise  the 
question  by  plea  in  abatement  to  the  jurisdiction.^ 

c.  //  the  court  is  one  of  inferior  or  special  jinisdiction,  and 
jurisdiction  does  not  affirmatively  appear  on  the  face  of  the 
complaint^  the  objection  may  be  taken  by  demurrer  under  the 
codes,^  or  by  answer,  or  by  motion  in  arrest  of  judgment.^ 

d.  By  plea  or  answer  where  the  want  of  jurisdiction  does  not 
appear  on  the  face  of  the  record.^ 

Where  the  objection  is  for  want  of  jurisdiction  of  the 
person,   a   plea   in   abatement   is   proper.^     But,    strictly 

1  Hardy  r.  Adams,  48  111.  532;  Wallace  v.  Cox,  71  111.  548. 

^  Eller  r.  Richardson,  89  Tenn.  575;  15  S.  W.  Rep.  650. 

'  Perry  v.  Erie  Transfer  Co.,  19  N.  Y.  Sup.  239. 

*  Perry  v.  Erie  Transfer  Co.,  16  N.  Y.  Sup.  153. 

'  Walker  v.  Stroud,  6  S.  W.  Rep.  202. 

Hiodfrey  v.  Godfrey,  17  Ind.  6;  79  Am.  Dec.  448;  1  Work's  Ind.  Pr. 
<fc  Pi.,  sec.  475;  Toledo,  Wabash,  etc.,  R.  Co.  r.  Milligan,  52  Ind.  505. 

^  Toledo,  Wabash,  etc.,  R.  Co.  r.  Milli<ran,  52  Ind.  505. 

^  Bliss'  Code  PL,  sec.  419;  Godfrey  v.  Godfrey,  17  Ind.  6 ;  79  Am.  Dec. 
4+8;  Brownfield  r.  Weicht,  9  Ind.  394;  Foster's  Fed.  Prac,  sec.  126 ;  1 
Work's  Ind.  Pr.  &  PL,  sees.  474,  476 ;  Boone's  Code  PL,  sec.  47  ;  Gervais 
r.  Chicago,  etc.,  Ry.  Co.,  58  Hun.  610;  12  N.  Y.  Sup.  312;  Ragan  r. 
Haynes,  10  Ind.  348;  Merrill  v.  Lake,  16  Ohio,  373,  406;  National  Bank 
V.  American  Ship  Building  Co.,  2  Atl.  Rep.  511. 

'  National  Bank  r.  American  Ship  Building  Co.,  2  Atl.  Rep.  511;  Min- 


110  GKXERAL    PRINCIPLES    AFFECTIXG    JURISDICTION. 

Speaking,  the  plea  is  to  the  jurisdiction,  and  should  be  in 
that  form.' 

It  is  provided  by  statute,  in  some  of  the  states,  that 
where  the  objection  goes  to  the  jurisdiction  of  the  person, 
and  it  appears  on  the  face  of  the  complaint,  it  must  be 
presented  by  demurrer,  or  it  is  waived.^  And  no  doubt 
this  is  the  effect  of  the  general  rule  that  objection  to  the 
jurisdiction  of  the  person  must  be  presented  before  taking 
any  other  step  in  the  case. 

It  is  also  held  that  the  want  of  jurisdiction  of  the  per- 
son is  waived  by  demurring  to  the  complaint  on  other 
grounds  and  not  upon  the  question  of  jurisdiction.* 

Whether  this  would  be  so  where  the  want  of  jurisdic- 
tion does  not  appear  upon  the  face  of  the  complaint  may 
be  questioned.  But  the  rule  that  where  a  party  enters  a 
special  a[)pearance  his  action  must  be  confined  to  jurisdic- 
tional grounds  or  his  appearance  will  be  general,*  would 
seem  to  compel  him,  if  he  depended  upon  an  answer,  to 
confine  himself  to  the  question  of  jurisdiction  alone;  and, 
if  so,  a  demurrer  on  other  grounds  would  cut  off  his  right 
to  raise  the  question  by  answer.  The  filing  of  a  demurrer 
is  uniformly  held  to  be  a  full  appearance  to  the  action  and 
submission  to  the  jurisdiction  of  the  court.*  And  the 
subsequent  withdrawal  of  the  demurrer  by  leave  of  the 
court  does  not  change  its  effect  as  an  appearance  to  the 
action.^  » 

If  the  objection  is  for  want  of  jurisdiction  of  the  person 
because  of  some  defect  in  the  issuance  or  service  of  pro- 
cess, an  appeal  is  held,  in  some  cases,  to  constitute  such 
an  appearance  as  will  waive  the  defect  and  give  jurisdic- 

eral  Point  R.  Co.  v.  Keep,  22  111.  124;  74  Am.  Dec.  124;  Ludwick  v. 
Beckamire,  15  Ind.  198. 

'  Drake  r.  Drake,  83  111.  526. 

^  1  Work's  lad.  Pr.  &  PI.,  sec.  519;  Keiser  t'.  Yandes,  45  Ind.  174;  Lin- 
den V.  Green,  81  la.  365;  46  N.  W.  Rep.  1108. 

3  Coffee  r.  City  of  Chippewa  Falls,  36  Wis.  121 ;  Slauter  v.  Hollowel], 
90  Ind.  286. 

*  Ante,  sec.  15.  ^  Ante,  sec.  13;  Slauter  v.  Hollowell,  90  Ind.  286. 

6  Evans  v.  lies,  7  Ohio  St.  234. 


HOW    QUESTION    OF    JURISDICTIOX    MAY    BE    RAISED.         Ill 

tioii.^  But  this  can  not  be  so  where  a  special  appearance 
has  been  entered  in  the  court  below  and  the  question 
there  presented  and  properly  reserved  and  presented  on 
appeal,^ 

e.  By  a  motion  to  vacate  the  judgment.^ 

In  most  of  the  states,  provision  is  made  for  the  setting 
aside  of  defaults  and  the  vacation  of  judgments  upon  mo- 
tion, within  a  limited  time,  upon  terms  to  be  imposed  by 
the  court.  Under  such  statutes,  the  judgment  may  be 
vacated,  although  the  judgment  appears  upon  its  face  to 
be  valid,  by  evidence  de  hors  the  record. 

Independent  of  such  statutory  authority,  it  is  held  in 
some  of  the  states  that  a  judgment  may  be  vacated  on 
mere  motion.  But  the  right  is  conlined  to  cases  where 
the  judgment  is  void  on  its  face.*  And,  even  where  the 
want  of  jurisdiction  is  apparent  on  the  face  of  the  record, 
an  action  regularly  brought  to  set  aside  the  judgment  is 
the  better  course,  and  should  be  required.^ 

f.  By  an  action  brought  to  set  aside  the  judgment.^ 

g.  The  court  may  refuse  to  entertain  jurisdiction  and  dis- 
miss the  action  of  its  own  motion?  And  in  some  cases  the 
court  may,  as  in  case  of  concurrent  jurisdiction  of  a  court 
of  equity,  entertain  jurisdiction,  or  not,  at  its  discretion.* 

1  Klaise  r.  The  State,  27  AVis.  462;  Barnnm  v.  Fitzpatrick,  11  Wis.  81 ; 
Ruth  r.  Green  Bay,  etc.,  Ry.  Co.,  37  Wis.  344. 

■^  Barnum  v.  Fitzpatrick,  11  Wis.  81. 

3  ^Etna  Life  Tns.  Co.  v.  McCormick,  20  Wis.  265;  Weatherbee  v.  Weath- 
erbee,  20  Wis.  494;  Reynolds  v.  Fleming,  30  Kan.  106;  1  Pac.  Rep.  61; 
Town  of  Wayne  v.  Caldwell,  47  N.  W.  Rep.  547. 

*  People  V.  Harrison,  84  Cal.  607  ;  24  Pac.  Rep.  311 ;  People  v.  Greene, 
74  Cal.  400 ;  16  Pac.  Rep.  197. 

*  People  V.  Harrison,  84  Cal.  607  ;  24  Pac.  Rep.  311. 

*  Freeman  on  Judg.,  sec.  495;  Bridgeport  Savings  Bank  v.  Eldridge,  28 
Conn.  556;  73  Am.  Dec.  688;  People  v.  Harrison,  84  Cal.  607;  24  Pac. 
Rep.  311;  Taylor  v.  Lewis,  19  Am.  Dec.  137,  note;  Crafts  v.  Dexter,  8 
Ala.  767;  42  Am.  Dec.  666;  Johnson  r.  Coleman,  28  Wis.  452,  455;  99 
Am.  Dec.  193 ;  Brown  r.  Goble,  97  Ind.  86 ;  Dunlap  r.  Steeve,  92  Cal.  344. 

'  Winchester  v.  Browne,  59  Hun,  626;  L3  N.  Y.  Sup.  655:  Phillips  ;•. 
Welch,  11  Nev.  187;  Dewey  v.  Hyde,  1  Pinney  (Wis.),  469;  Robertson 
V.  State,  109  Ind.  79 ;  10  N.  E.  Rep.  582. 

8  Seymour  r.  Long  Dock  Co.,  20  N.  J.  Eq.  396. 


112  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

This  may  be  done  in  an  action  in  favor  of  a  citizen  of 
another  state  against  a  foreign  corporation,^  or  an  action 
for  personal  injuries  between  citizens  of  another  state 
where  the  injury  was  committed  out  of  the  state.^ 

h.  By  motion  for  non-suit.^ 

i.  Where  the  objection  appears  on  the  face  of  the  record  in 
a  court  of  general  jurisdiction,  or  does  not  appear  in  a  court 
of  inferior  or  special  jurisdiction,  it  may  be  raised  by  a  motion 
in  arrest  of  judgment.* 

j.  The  question  of  jurisdiction  of  a  lower  court  may  be  raised 
in  a  superior  court,  independent  of  any  appeal,  by  certiorari.^ 

k.  By  prohibition.^ 

1.  The  question  may  be  raised  in  the  court  in  which  the  pro- 
ceedings were  had  or  in  any  other  court  of  competent  jurisdic- 
tion by  habeas  corpus.'' 

When  there  is  a  want  of  jurisdiction  of  the  subject- 
matter  the  judgment  of  the  court  may  be  attacked  col- 
laterally whenever  any  benefit  or  protection  is  sought  un- 
der it.^ 

The  question  may  be  raised  on  appeal  by  motion  to  dis- 
miss.^    Or  by  assignment  of  error.^''    But  when  the  question 

1  Ante,  sec.  15 ;  Gervais  v.  Chicago,  etc.,  Ry.  Co.,  58  Hun,  610 ;  12  N.  Y. 
Sup.  312. 

2  Burdick  v.  Freeman,  120  N.  Y.  420;  24  N.  E.  Rep.  949. 

3  16  Am.  &  Eng.  Enc.  of  L.  740. 

"  Toledo,  Wabash,  etc.,  R.  Co.  v.  Millifan,  52  Ind.  505;  Loeb  r.  Mathis, 
37  Ind.  306. 

s  Ex  parte  Lange,  85  U.  S.  163;  Maxwell  v.  Rives,  11  Nev.  213;  Bou- 
ton  V.  City  of  Brooklyn,  7  How.  Pr.  198,  206. 

6  Bruner  V.  Superior  Court,  92  Cal.  239,  251,  259;  28  Pac.  Rep.  341 ; 
Levy  V.  Wilson,  69  Cal.  105;  10  Pac.  Rep.  272;  Quimbo  Appo  v.  The 
People,  20  N.  Y.  531  ;  People  v.  Wayne  Circuit  Court,  11  Mich.  393;  83 
Am.  Dec.  754. 

•f  In  re  Staff,  63  Wis.  285;  23  N.  W.  Rep.  587  ;  In  re  Millburn,  59  Wis. 
24 ;  17  N.  W.  Rep.  965 ;  Ex  parte  Coy,  127  U.  S.  731 ;  8  Sup.  Ct.  Rep. 
1263  ;  People  r.  Liscomb,  60  N.  Y.  559 ;  19  Am.  Rep.  211 ;  Common- 
w^ealth  t).  Lecky,  1  Watts,  66;  26  Am.  Dec.  37,  41,  note;  Petition  of 
Crandall,  34  Wis.  177;  Ex  parte  Snow,  120  U.  S.  274;  7  Sup.  Ct.  Rep. 
556. 

8  Putnam  v.  Man,  3  W^end.  202 ;  20  Am.  Dec.  686 ;  Elliott  v.  Lessee  of 
Peirsol,  1  Pet.  328. 

9  Elliott's  App.  Pro.,  sees.  408,  409. 

1"  Elliott's  App.  Pro.,  sees.  328,  330;  2  Work's  Ind.  Pr.  &  PI.,  sec.  1085 ; 


HOW    QUESTION    OF    JURISDICTION    MAY    BE    RAISED.         113 

arises  upon  a  defective  service  and  not  an  entire  want  of 
notice,  or  no  jurisdiction,  the  objection  must  be  iirst  made 
in  the  court  below.^  And  this  rule  has  been  applied  where 
there  has  been  a  judgment  by  default  on  the  ground  that 
there  must  be  a  motion  to  set  aside  the  default  in  the  court 
below. ^ 

But  the  better  rule  is  that  where  the  judgment  is  by 
default,  and  the  party  has  not  had  his  day  in  court  below, 
he  may,  where  the  record  fails  to  show  any  service,  or 
shows  an  insufficient  one,  raise  the  question  in  the  ap- 
pellate court  for  the  first  time.^ 

If  there  is  an  entire  want  of  jurisdiction  which  would 
render  the  judgment  void  the  objection  may  be  made  for 
the  first  time  in  the  appellate  court,  and  this  may  be 
done  either  by  a  motion  to  dismiss  or  by  an  assignment 
of  error.* 

In  order  to  reach  the  question  of  jurisdiction  by  assign- 
ment of  error,  where  the  court  is  one  of  general  jurisdic- 
tion, want  of  jurisdiction  must  affirmatively  appear.  The 
rule  is  the  same  as  in  case  of  a  demurrer.^ 

The  rule  is  difterent  in  the  United  States  courts,  where 

Riley  v.  Butler,  36  Ind.  51 ;  McGoldrick  v.  Slevin,  43  Ind.  522;  Eslava 
V.  Lepretre,  21  Ala.  504 ;  56  Am.  Dec.  271 ;  Dewey  v.  Hyde,  1  Pinney 
(Wis.),  469;  Lane  v.  Taylor,  40  Ind.  495. 

'  Elliott's  App.  Pro.,  sees.  330,  331  ;  Pennoyer  v.  Neff,  95  U.  S.  714. 

^  De  Armond  v.  Adams,  25  Ind.  455 ;  Elliott's  App.  Pro.,  sec.  334. 

^  Cochnowert'.  Cochnower,  27  Ind.  254.  In  this  case  the  court  said: 
"  While  there  may  be  sound  reason  to  require  that  advantage  shall 
not  be  first  taken  in  the  appellate  court  of  a  defective  return  of  serv- 
ice, which  might  have  been  amended  below  if  attention  had  been 
there  called  to  it,  and  where  the  defendant  had  such  knowledge  of  the 
suit  as  gave  him  opportunity  to  make  the  question  there,  we  are  un- 
able to  sui>port,  by  a  single  weighty  consideration,  a  rule  which  re- 
quires the  performance  of  impossibilities  below,  as  a  condition  prece- 
dent to  the  right  to  be  heard  in  this  court.  When  the  legislature 
makes  such  a  rule,  we  shall  administer  it,  but  we  will  not  be  responsi- 
ble for  its  origin.  Accordingly,  in  Abdil  v.  Abdil,  26  Ind.  287,  where, 
without  any  process,  a  default  was  entered  and  a  judgment  rendered, 
we  reversed  the  judgment  for  the  error  in  entering  the  default." 

*  Elliott's  App.  Pro.,  sees.  331,  332. 

*  Riley  v.  Butler,  36  Ind.  52 ;  Elliott's  App.  Pro.,  sec.  502. 

8 


"N 


114  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

the  jurisdiction  must  appear  on  the  face  of  the  record.  If 
it  does  not  so  appear  the  judgment  will  be  reversed  bj 
the  supreme  court  on  an  assignment  of  error  that  the 
court  below  had  not  jurisdiction.^  So  if  the  declaration 
or  petition  does  not  show  that  the  parties  are  within  the 
jurisdiction  of  the  court.^ 

The  question  as  to  the  jurisdiction  of  the  appellate 
court  may  be  raised  by  a  motion  to  dismiss  the  appeal.^ 
Or,  where  a  judgment  has  been  rendered,  by  a  motion  to 
vacate  the  same.*  Or  by  a  special  plea  to  the  jurisdic- 
tion.^ 

The  enforcement  of  a  judgment  may  be  prevented  by 
injunction  on  the  ground  of  want  of  jurisdiction.^  But 
this  can  not  be  done  where  the  party  has  an  adequate  and 
speedy  remedy  by  application  to  the  court  in  which  the 
judgment  was  rendered.^ 

A  court  of  equity  will  not  enjoin  proceedings  in  a  com- 
mon law  court  which  are  void  on  their  face,  for  want  of 
jurisdiction,  for  the  reason  that  in  such  a  case  the  party 
has  an  adequate  remedy  at  law.**  And  mere  laches  on  the 
part  of  the  party  seeking  relief,  in  failing  to  make  appli- 
cation to  the  court  in  which  the  action  was  pending,  will 
prevent  his  obtaining  relief  by  injunction.^ 

A  court  of  equity  will  not  enjoin  the  enforcement  of  a 

1  Continental  Life  Ins.  Co.  v.  Rhoads,  119  U.  S.  237 ;  7  Sup.  Ct.  Rep. 
193 ;  United  States  v.  Southern  Pac.  R.  Co.,  49  Fed.  Rep.  296. 
^  Brown  v.  Keene,  8  Pet.  112. 

*  Hayne,  New  Trial  and  App.,  sec.  272,  p.  817;  Stone  v.  Elkins,  24 
Cal.  125;  Poland  v.  Carrigan,  20  Cal.  175. 

*  Ex  parte  Crenshaw,  15  Pet.  119. 

5  Elliott's  App.  Pro.,  sees.  408,  409. 

«  Wood  V.  Stanberry,  21  Ohio  St.  142 ;  10  Am.  &  Eng.  Enc.  of  Law, 
907;  Grass  V.  Hess,  37  Ind.  193;  Glass  v.  Smith,  66  Tex.  548;  2  S.  W. 
Rep.  195. 

'  Luco  r.  Brown,  73  Cal.  3 ;  14  Pac.  Rep.  366 ;  Couistock  v.  Clemmens, 
19  Cal.  78;  Gates  v.  Lane,  49  Cal.  260;  Ede  r.  Hazen,  61  Cal.  360,  Moul- 
ton  r.  Knapp,  85  Cal.  385 ;  24  Pac.  Rep.  803. 

8  St.  Louis,  etc.,  R.  Co.  v.  Reynolds,  89  Mo.  146 ;  1  S.  W.  Rep.  208;  Gates 
V.  Lane,  49  Cal.  266;  High  on  Inj.,  sec.  89;  Sanchez  v.  Carriaga,  31  Cal. 
170. 

^  Moulton  V.  Knapp,  85  Cal.  385 ;  24  Pac.  Rep.  803 ;  Yancey  v.  Downer, 
5  Littell,  8;  15  Am.  Dec.  35. 


HOW   QUESTION    OF   JURISDICTION    MAY   BE   RAISED.        115 

judgment  merely  on  the  ground  that  it  is  irregular  or 
void.  The  court  proceeds  upon  equitable  considerations 
only,  and  it  must  further  appear  that  the  judgment  is  in- 
equitable and  that  its  enforcement  would  work  injustice.^ 

Provision  is  made  in  some  of  the  states  whereby  a  de- 
fendant constructively  served  may  be  relieved  within  a 
certain  time  from  a  judgment,  and  be  allowed  to  come  in 
and  defend.  And  it  is  held  that  where  a  judgment  by 
default  has  been  fraudulently  obtained  upon  constructive 
service,  a  court  of  equity  will  relieve  a  defendant  after  the 
time  fixed  by  statute.* 

The  right  to  move  to  vacate  a  judgment  within  a  speci- 
fied time  for  irregularities,  or  in  case  of  accident  or  sur- 
prise, as  provided  by  statute,  must  not  be  confounded  with 
the  right  to  vacate  a  void  judgment,  which  is  an  inherent 
right  of  the  court  where  no  statute  on  the  subject  has 
been  enacted.^ 

The  general  rule  is  that  the  power  to  vacate  or  change 
its  judgment  is  limited  by  the  term,  and  can  not  be  exer- 
cised afterward. 

The  right  to  object  for  want  of  jurisdiction  of  the  per- 
son is  always  subject  to  the  rule  that  the  objection  may  be 
waived  by  consent,  or  an  appearance,  or  other  submission 
to  the  jurisdiction  of  the  court.*  And  where  the  court 
has  jurisdiction  of  the  subject-matter,  if  the  same  were 
within  its  territorial  jurisdiction,  it  has  been  held  that  the 
objection  that  the  action  is  brought  in  the  wrong  county, 
as  where  property  out  of  the  county  is  taken  on  a  writ  of 
replevin,  will  be  waived  by  a  general  appearance.^ 

[Jsually  provision  is  made  by  statute  for  changing  the 
place  of  trial  where  the  action  is  brought  in  the  wrong 
county,  and  requiring  the  application  to  be  made  before  or 

1  Thomas  v.  West,  59  Wis.  103;  Stokes  v.  Knarr,  11  Wis.  389;  Able- 
man  V.  Roth,  12  Wis.  90  ;  7  Lawson's  Rights  &  Rem.,  sec.  3702  ;  High  on 
Inj.,  sec.  125. 

*  Dunlap  V.  Steere,  92  Cal.  344 ;  28  Pac.  Rep.  563. 

^  Dederick's  Adm.  v.  Richley,  19  Wend.  108;  Manufacturers,  etc., 
Bank  v.  Boyd,  3  Denio,  257 ;  /Etna  Life  Ins.  Co.  v.  McCormick,  20  Wis. 
265,  268. 

*  Ante.,  sec.  13  ;  Boone's  Code  PI.  259. 

*  Bonesteel  v.  Gardner,  0  Dak.  000;  46  N.  W.  Rep.  690. 


116  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

at  the  time  of  pleading  to  the  action.  Under  such  a  statu- 
tory provision,  if  the  application  is  not  made  within  the 
time  limited,  the  objection  to  the  jurisdiction  is  waived. 

If  the  court  is  one  of  general  jurisdiction  it  need  not 
appear,  affirmatively,  that  the  subject-matter  is  within  the 
jurisdiction  of  the  court,  or  that  it  has  obtained  jurisdic- 
tion of  the  person.  Both  will  be  presumed,  and  the  fact 
that  the  court  has  not  jurisdiction  must  be  shown  by 
answer.'  And  where  the  question  of  jurisdiction  arises  in 
case  of  a  domestic  judgment  of  a  court  of  general  jurisdic- 
tion, all  presumptions  are  in  favor  of  its  jurisdiction, 
both  of  the  subject-matter  and  of  the  person.^  But  this 
rule  does  not  apply,  where  the  attack  is  direct,  to  the 
courts  of  the  United  States,  whose  jurisdiction  is  confined 
to  what  is  expressly  given  them  by  the  constitution  and 
statutes,  and  must  appear  upon  the  record.^ 

In  a  United  States  court  sitting  as  a  court  of  equity  a 
demurrer  will  lie  to  the  bill  if  the  jurisdiction  of  the  court 
does  not  affirmatively  appear  therefrom,  while  in  a  state 
court  the  presumption  of  jurisdiction,  in  the  absence  of 
any  showing,  will  withstand  a  demurrer,  and  the  presump- 
tion can  only  be  overcome  by  answer.* 

The  effect  of  a  return  by  the  proper  officer  showing 
service  of  process  is  a  matter  about  which  there  is  a  great 
diversity  of  opinion  in  the  decided  cases.  In  some  of  the 
cases  it  is  held  that  in  an  action  brought  in  a  court  of 
equity  to  set  aside  a  judgment  for  want  of  jurisdiction  of 
the  person  the  return  of  the  officer  is  not  conclusive,  but 
may  be  disproved  and  the  judgment  set  aside,  notwith- 
standing such  return.^ 

There  are  cases  holding,  however,  that  the  only  ground 

1  Post,  sees.  23,  25 ;  Godfrey  r.  Godfrey,  17  Ind.  6 ;  79  Am.  t>ec.  448 ; 
1  Works'  Ind.  Pr.  &  PL,  sec.  474;  Gervais  v.  Chicago,  etc.,  Ry.  Co.,  58 
Hun,  610 ;  12  N.  Y.  Sup.  312 ;  Kinnaman  v.  Kinnaman,  71  Ind.  417. 

^  Post,  sees.  23,  25;  Kenney  v.  Greer,  13  111.  432,  449;  54  Am.  Dec.  439. 

^  Foster's  Fed.  Prac,  sec.  108;  Turner  v.  Bank  of  North  Am.,  4  Dalt. 
8 ;  Godfrey  v.  Terry,  97  U.  S.  171 ;  ante,  sec.  7 ;  post,  sec.  25. 

*  Foster's  Fed.  Prac,  sec.  174;  Godfrey  v.  Terry,  97  U.  S.  178. 

^  Freeman  on  Judg.,  sec.  495 ;  Bridgeport  Sav.  Bank  v.  Eldridge,  28 
Conn.  556;  73  Am.  Dec.  688 ;  Owens  v.  Ranstead,  22  III.  161,  167 ;  Ridge- 
way  V.  Bank  of  Tenn.,  11  Hump.  523. 


I 


HOW    QUESTION    OF    JURISDICTIOX    MAY    BE    RAISED.        117 

upon  which  a  judgment  can  be  set  aside  by  a  court  of 
equity,  as  against  the  officer's  return,  is  that  the  return  is 
false  and  fraudulent,  and  that  the  return  is  conclusive  un- 
less the  plaintiff  or  other  party  recovering  the  judgment 
is  connected  with  the  fraud.  These  cases  hold  that  th^ 
only  remedy  in  such  a  case  is  against  the  officer  making 
the  false  return.^ 

The  rule  that  the  return  of  the  officer  is  conclusive  on 
the  parties  is  not  adhered  to  in  paany  of  the  decided  cases 
where  the  question  is  one  of  jurisdiction  depending  upon 
whether  there  has  been  service  of  summons  or  not.^ 

The  return  of  the  officer  is  generally  held  to  stand  upon 
the  same  footing,  in  this  respect,  as  other  matters  appear- 
ing in  the  record  showing  that  the  court  had  jurisdiction. 
The  effect  of  recitals  in  the  record  or  other  matters  show- 
ing jurisdiction  is  considered  elsewhere.^ 

The  general  rule,  supported  by  the  great  weight  of  au- 
thority, is  that  the  return  of  the  officer  is  conclusive  upon 
the  parties  in  case  of  a  collateral  attack  upon  a  domestic 
judgment.^  Bat  the  conclusiveness  of  the  return  is  con- 
fined to  facts  of  which  the  officer  must  necessarily  certify 
from  his  own  personal  knowledge,  and  does  not  extend  to 
matters  in  which  he  must  be  dependent  upon  others  for 
information ;  for  example,  the  fact  whether  a  person  upon 
whom  he  serves  process  is  an  agent  of  a  corporation.^ 

A  court  will  not  maintain  jurisdiction  where  it  appears 
to  have  been  obtained  by  the  fraud  of  the  plaintiff  or 
others  acting  for  him.  Therefore,  if  it  appears  that  a 
party  has  been  brought  within  the  jurisdiction  of  the  court 
by  deceit,  and  the  summons  served  upon  him,  the  service 
will  be  set  aside.*^     But,  where  the  defendant  appears  and 

'  Walker  v.  Bobbins,  14  How.  584;  Johnson  r.  Jones,  2  Neb:  126,  132  ; 
Taylor  v.  Lewis,  2  J.  J.  Mar.  400;  19  Am.  Dec.  135  ;  Cavanaugh  v.  .Smith, 
84  Ind.  380;  Egery  v.  Buchanan,  5  Cal.  53. 

'  Carr  r.  Commercial  Bank  of  Racine,  16  Wis.  50,  and  cases  cited. 

^  Post,  sec.  23. 

■*  Cavanaugh  v.  Smith,  84  Ind.  380 ;  Nichols  v.  Nichols,  96  Ind.  433 ; 
Egery  v.  Buchanan,  5  Cal.  53;  Splahn  v.  Gillespie,  48  Ind.  397;  1  Works' 
Ind.  Prac.  &  PI.,  sec.  244  ;  Johnson  v.  Patterson,  59  Ind.  237. 

^  Forrest  v.  Union  Pac.  R.  Co.,  47  Fed.  Rep.  1. 

®  Baker  v.  Wales,  45  How.  Pr.  137;  Steiger  v.  Bonn,  59  How.  Pr.  496. 


118  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

pleads  to  the  action,  the  objection  to  the  manner  of  the 
service  is  thereby  waived.^ 

The  question  of  jurisdiction  of  the  subject-matter  may 
arise  in  the  court  in  which  the  action  is  pending,  or  on 
appeal,  or  by  action  in  another  court  to  set  aside  the  judg- 
ment, or  it  may  arise  in  the  court  in  which  the  proceed- 
ings were  had,  or  in  some  other  court.  Where  the  attack 
is  direct,  the  question  whether  the  court  is  one  of  general 
or  of  inferior  or  special  jurisdiction  is  immaterial.  The 
question  of  jurisdiction  of  the  subject-matter  may  be 
raised  directly,  either  in  the  trial  court  or  on  appeal,  at 
any  stage  of  the  proceedings.^ 

Want  of  jurisdiction  of  the  subject-matter  can  not  be 
waived,  but  may  be  raised  at  any  time  and  in  any  manner 
directly  or  collaterally.^ 

The  right  to  raise  the  question  in  the  trial  court  is  not 
confined  to  the  pendency  of  the  action.  The  jurisdiction 
may  be  contested,  after  judgment,  by  a  motion  to  vacate 
the  same,  and,  if  it  appears  that  the  court  had  not  juris- 
diction, the  judgment  will  be  declared  void,  and  set  aside.^ 

The  question  of  the  jurisdiction  of  the  lower  court  of 
the  subject-matter  is  open  to  objection  in  the  appellate 
court  for  the  first  time.^  And  a  court  which  is  competent, 
by  its  own  constitution,  to  decide  on  its  jurisdiction  in  a 
given  case  can  determine  that  question  at  any  time  in  the 
proceedings  whenever  it  is  made  to  appear  to  its  satisfac- 
tion, either  before  or  after  judgment.* 

The  jurisdiction  may  be  brought  in  question,  collater- 
ally, in  many  ways.  Where  action  is  brought  upon  a 
judgment,  the  question  may  be  raised  by  demurrer  where 
the  defect  appears  on  the  face  of  the  record,  the  same  as 
in  the  original  action,  or  by  plea  or  answer.^  Or,  if  the 
judgment  is  ofi'ered  in  evidence,  for  any  purpose,  it  may, 

^  Fitzgerald,  etc.,  Co.  r.  Fitzgerald,  2  Sup.  Ct.  Rep.  36. 

^  Doctor  r.  Hartman,  74  lud.  221,  228;  Cooley's  Const.  Lim.,  *  p.  398. 

^  Ante,  sec.  12;  Cooley's  Const.  Lim.,  =■  p.  398;  Doctors.  Hartman,  74 
Ind.  221. 

*  Town  of  Wayne  v.  Caldwell,  47  N.  W.  Rep.  547. 

'"  Poyser  v.  Murray,  6  Ind.  35  ;  Doctor  r.  Hartman,  74  Ind.  221. 

«  2  Bates's  PI.  &  Par.  876,  877 ;  Rape  v.  Heaton,  9  Wis.  328 ;  76  Am. 
Dec.  269. 


HOW    QUESTION    OF    JURISDICTION    MAY    BE    RAISED.        119 

if  it  is  subject  to  collateral  attack,  be  objected  to  on  the 
ground  of  want  of  jurisdiction,  and  the  objection  must  be 
sustained.^ 

The  question  frequently  arises  as  to  what  constitutes  a 
direct  attack  upon  the  jurisdiction  of  the  court.  Wheje 
the  objection  is  made  by  motion,  demurrer,  plea  or  answer, 
or  in  any  other  mode  allowed  by  law,  in  the  court  in 
which  the  action  is  pending,  and  in  that  action,  or  in  the 
appellate  court,  in  the  action,  by  motion,  by  assignment 
of  error,  or  in  any  other  mode  allowed  by  law,  the  attack 
is  direct. 

So  where  a  motion  is  made  in  the  court  in  which  the 
judgment  is  rendered,  in  the  manner  and  within  the  time 
authorized  by  statute.^ 

It  is  held  in  some  cases  that  an  attack  made  upon  a 
judgment  by  motion,  not  made  under  the  statute  or 
within  the  time  limited,  is  a  direct  attack.^  But  it  is  be- 
lieved that  these  cases  do  not  state  the  law  correctly. 
The  decisions  referred  to  are  clearly  inconsistent  with  the 
statement  contained  in  the  opinions  that  the  attack  is  di- 
rect, as  they  all  hold  that  on  such  a  motion  the  judgment 
can  only  be  attacked  on  the  ground  that  it  is  void  on  its 
face.*  This  is  equivalent  to  holding  that  the  attack  is  col- 
lateral and  not  direct. 

It  is  held  that  an  action  brought  in  the  same  court  to 
set  aside  the  judgment  for  want  of  jurisdiction  is  a  direct 
attack.^  But  it  makes  no  difference  whether  an  action  is 
brought  in  the  same  or  another  court,  and  the  better  rule 
seems  to  be  that  in  either  case  the  attack  is  collateral.^ 

1  McMinn  v.  Whelan,  27  Cal.  310,  311 ;  Rape  '■.  Heaton,  9  Wis.  328, 
332  ;  76  Am.  Dec.  269. 

2  People  V.  Mullan,  65  Cal.  396 ;  4  Pac.  Rep.  348  ;  Reynolds  v.  Fleming, 
30  Kan.  106 ;  1  Pac.  Rep.  64. 

^  People  V.  Green,  74  Cal.  400;  16  Pac.  Rep.  197  ;  People  r.  Pearson,  76 
Cal.  400 ;  18  Pac.  Rep.  424. 

*  People  r.  Harrison,  84  Cal.  607  ;  24  Pac.  Rep.  31 1. 

^  Newcomb  v.  Dewej%  27  la.  381,  387;  Stone  v.  Kerry,  31  Ta.  582; 
Johnson  v.  Ramsey,  91  Ind.  189. 

^  Johnson  v.  Jones,  2  Neb.  126;  Rogers  v.  Beauchamp,  102  Ind.  33;  1 
N.  E.  Rep.  185;  Exchange  Bank  r.  Ault,  102  Ind.  322;   1  X.  E.  Rep.  562. 


120  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

Where  the  question  arises  in  some  other  action  or  pro- 
ceeding, not  brought  directly  to  set  aside  the  judgment, 
as  for  example  where  an  action  is  brought  on  the  judg- 
ment, whether  in  the  court  rendering  it  or  in  some  other 
court,  or  where  the  judgment  is  offered  in  evidence  in  an- 
other action  or  proceeding,  whether  in  the  same  or  in 
another  court,  the  attack  is  collateral. 

The  general  rule  is  that  the  jurisdiction  of  a  court  of 
general  jurisdiction  will  be  presumed,  and  can  not  be  col- 
laterally attacked.^  But  there  are  exceptions  to  this  rule. 
One  of  these  exceptions  is  that  where  the  court  is  one  of 
general  jurisdiction,  but  in  the  case  in  question  was  re- 
quired to  proceed  in  a  special  manner  provided  by 
statute,  or  where  the  mode  of  acquiring  and  exercising 
jurisdiction  is  special  and  statutory,  and  the  party  to 
be  affected  is  a  non-resident  of  the  state  in  which  the 
judgment  is  sought  to  be  recovered,  no  such  presump- 
tion will  prevail,  and  the  judgment  is  open  to  collateral 
attack.^ 

So  the  weight  of  authority  seems  to  be  that  where  an 
action  is  brought  to  recover  upon  a  foreign  judgment,  in- 
cluding a  judgment  of  another  state,  the  jurisdiction  of  a 
court  of  general  jurisdiction  is  open  to  attack,  not  only 
against  the  presumption  in  favor  of  its  jurisdiction,  but 
against  a  showing  of  jurisdiction  appearing  in  the  record.'- 
But,  as  we  have  seen  elsewhere,  this  proposition  has  nt)t 
gone  unchallenged,  but  is  opposed  by  numerous  author- 
ities.^ 

And  where  the  proceeding  in  a  foreign  court  is  one  in 
rem,  it  may  be  shown  not  only  that  the  subject-matter, 
generally,  was  not  within  the  jurisdiction  of  the  court, 
but  that  the  particular  property  in  controversy  was  not 
within  such  jurisdiction.^ 

The  right  to  contest  a  judgment  for  want  of  jurisdiction 
is  not  confined  to  parties  to  the  judgment.     It  extends  to 

^  Ante,  sec.  7 ;  post,  sees.  23,  25.  ^  Post,  sees.  23,  25. 

2  Eose  V.  Himely,  4  Cranch,  241,  268. 


HOW    QUESTION    OF   JURISDICTION    MAY   BE    RAISED.        121 

others  who  have  succeeded  to  their  rights  that  are  subject 
to  the  judgment  if  enforced.' 

Where  a  judgment  is  void  on  its  face,  the  court  has  in- 
herent power  to  set  it  aside,  upon  a  proper  showing,  and 
the  statutes  authorizing  a  motion  to  vacate  within  a  lim- 
ited time  are  usually  held  not  to  affect  this  power.^  But 
the  question  sometimes  arises  whether,  after  a  long  space 
of  time  has  intervened,  the  judgment  can  be  vacated  on 
motion,  or  whether  it  is  not  necessary  to  bring  suit  for 
that  purpose.  The  right  to  obtain  such  relief  by  motion 
has  been  upheld  f  but  the  better  rule  seems  to  be  that  no 
such  motion  can  properly  be  entertained  after  the  term,  or 
where  the  time  within  which  to  move  is  fixed  by  law, 
after  the  time  limited — and  that,  after  that  time,  an  action 
is  necessary.*  It  must  not  be  understood  from  this,  how- 
ever, that  a  court  is  bound,  after  the  term,  to  enforce  a 
void  judgment.  It  has  control  over  its  process,  and  may 
decline  to  allow  it  to  be  used  to  execute  such  a  judgment, 
and  may  arrest  its  process  when  issued  thereon.' 

An  appearance  by  an  attorney  may  be  shown,  in  an  ac- 
tion on  a  foreign  judgment,  to  have  been  entered  without 
authority,  and  the  want  of  jurisdiction  thus  established.^ 

Whether  this  can  be  done  in  case  of  a  domestic  judg- 
ment is  a  disputed  question  upon  which  the  authorities  are 
conflicting.  The  weight  of  authority  seems  to  be  that  the 
want  of  authority  of  the  attorney  to  appear  can  not  be 
shown  collaterally.^  But  there  are  cases  holding  that 
there  is  no  difference  between  foreign  and  domestic  judg- 

1  People  V.  Mullan,  65  Cal.  396;  4  Pac.  Rep.  348. 

2  People  V.  Greene,  74  Cal.  400 ;  16  Pac.  Rep.  197. 

^  People  V.  Greene,  74  Cal.  400 ;  16  Pac.  Rep.  197 ;  People  v.  Mullan, 
65  Cal.  396;  4  Pac.  Rep.  348;  People  v.  Pearson,  76  Cal.  400;  18  Pac. 
Rep.  424. 

*  Bell  V.  Thompson,  19  Cal.  706;  People  v.  Goodhue,  80  Cal.  199;  22 
Pac.  Rep.  66;  People  v.  Harrison,  84  Cal.  607;  24  Pac.  Rep.  311.  ' 

^  Chipman  v.  Bowman,  14  Cal.  158;  Logan  v.  Hillegass,  16  Cal.  200; 
Bell  V.  Thompson,  19  Cal.  707. 

®  Ante,  sees.  13,  20 ;  post,  sees.  23,  25 ;  Harshey  v.  Blackmarr,  20  la.  101  ; 
89  Am.  Dec.  520. 

''Ante,  sec.  13;  post,  sees.  23,  25;  Callen  v.  Ellison,  13  Ohio  St.  446;  82 
-Am.  Dec.  448,  454. 


122  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

ments  in  this  respect,  and  that  in  either  case  the  judg- 
ment may  be  overthrown,  even  in  a  collateral  proceeding, 
by  proof  that  the  appearance  of  the  attorney  was  unau- 
thorized,^ 

Generally,  as  we  have  shown  in  another  place,  the  court 
in  which  the  judgment  was  taken  will  relieve  the  party 
from  the  judgment  upon  his  coming  in  and  submitting  to 
the  jurisdiction,  if  a  resident  of  the  state,  and  absolutely 
if  a  non-resident.^ 

The  authorities  on  the  question  growing  out  of  the  un- 
authorized appearance  of  attorneys  have  been  fully  con- 
sidered in  another  place,  and  to  undertake  to  discuss  them 
in  this  connection  would  be  mere  repetition.^ 

23.  How  JURISDICTION  PROVED  AND  DISPROVED, — The  ques- 
tion whether  jurisdiction  exists,  or  did  exist  in  a  given 
court,  over  the  subject-matter,  or  of  the  persons  of  the  par- 
ties, may  arise  in  various  ways.  The  attack  upon  its  ju- 
risdiction may  be  in  a  direct  proceeding  or  collaterally.  It 
may  be  presented  to  the  court  in  which  the  action  is 
pending,  or  the  court  to  which  the  action  is  appealed,  or 
to  some  other  court.  The  manner  in  which  the  jurisdic- 
tion of  a  court  may  be  attacked  is  considered  elsewhere 
in  this  work.^ 

We  are  now  to  inquire  how  the  jurisdiction  of  the 
court  may  be  proved  or  disproved  when  attacked.  Some- 
times it  is  necessary  to  allege  and  prove  the  jurisdiction 
of  a  court  where  it  is  not  attacked,  as  in  case  of  an  ac- 
tion brought  upon  the  judgment  of  a  court.  And  the 
proof  necessary  to  establish  such  jurisdiction  depends  ma- 
terially upon  the  character  of  the  court,  whether  it  is  one 
of  general  or  superior,  or  of  inferior  or  special  jurisdiction, 
and  whether  it  is  a  domestic  or  foreign  court.  The  differ- 
ence between  courts  of  general  and  of  special  jurisdiction 

>  Ante,  sec.  13  ;  post,  sees.  23,  25 ;  Harshey  v.  Blackmarr,  20  la.  161 ;  89 
Am.  Dec.  520,  523. 

^  Ante,  sec.  13.  »  ^  Ante,  sec.  22. 


Ill 


HOW    JURISDICTION    PROVED    AND    DISPROVED.  123 

has  been  considered.^  And  the  presumption  that  prevails 
in  favor  of  the  jurisdiction  of  courts  of  general  and  su- 
perior jurisdiction  has  also  received  attention.^ 

Whenever  the  jurisdiction  of  a  court  will  be  presumed 
this  presumption  alone  establishes  its  jurisdiction,  and  the 
party  asserting  a  right  under  its  judgment  need  make  no 
proof  until  this  presumption  is  overcome  by  some  proof 
on  the  other  side.^  But  if  the  court  is  one  whose  juris- 
diction will  not  be  presumed,  every  fact  necessary  to  show 
that  it  had  jurisdiction  must  be  proved. 

If  the  question  is  as  to  the  jurisdiction  of  the  subject- 
matter  the  law  will  show  of  what  the  court  has  jurisdic- 
tion, and  the  pleadings  in  the  cause  will  usually  show 
whether  the  subject-matter  in  dispute  is  within  that  juris- 
diction or  not. 

If  the  judgment  or  proceeding  is  of  a  court  of  a  for- 
eign country,  or  of  another  state  in  the  United  States,  the 
law  giving  the  court  jurisdiction  must,  in  the  absence  of 
any  presumption  in  favor  of  its  jurisdiction,  be  proved.* 

If  the  court  is  one  of  general  jurisdiction  no  such  proof 
is  necessary  as  its  jurisdiction  will  be  presumed  whether 
the  attempt  to  enforce  the  judgment  is  made  in  the  state 
where  the  same  was  rendered  or  in  a  sister  state.^  But 
there  is  this  difference,  according  to  the  weight  of  author- 
ity, between  a  domestic  and  a  foreign  judgment.  As  to 
the  former  the  presumption  in  favor  of  jurisdiction  is 
conclusive,  but  as  to  the  latter  it  is  only  prima  facie  evi- 
dence of  jurisdiction.^ 

^  Ante,  sees.  7,  20,  22.  *  Post,  sec.  25. 

*  Bruckman  v.  Taussig,  7  Colo.  561 ;  5  Pac.  Rep.  152. 

*  Rape  V.  Heaton,  9  Wis.  328  ;  76  Am.  Dec.  269 ;  Sheldon  r.  Hopkins, 
7  Wend.  435 ;  Thomas  v.  Robinson,  3  Wend.  268. 

'"  Ante,SQC.  22;  post,  sec.  25;  Freeman  on  Judg.,  sees.  452,  453,518; 
Bruckman  v.  Taussig,  7  Col.  561  ;  5  Pac.  Rep.  152. 

^  Ante,  sec.  22;  post,  sec.  25;  Coit  v.  Haven,  30  Conn.  190';  79  Am.  Dec. 
244. 

In  Coit  V.  Haven,  supra,  the  court  said:  "We  do  not  understand 
that,  upon  the  authorities  at  home  or  abroad,  there  is  any  contra- 
riety of  opinion,  that  a  domestic  judgment  rendered  by  a  court  of 
general  jurisdiction,  where  no  want  of  jurisdiction  is  apparent  on  the 


124  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

If  the  court  is  not  a  foreign  court,  the  law  defining  its 
jurisdiction  need  not  be  proved  unless  it  depends  upon  a 
private  statute,  as  the  court  before  whom  the  question  is 
raised  will  take  judicial  notice  of  all  general  statutes 
of  the  state.^ 

If  the  law  of  a  foreign  state  is  not  proved,  the  general 
rule  is  that  it  will  be  presumed  to  be  the  same  as  the  law 
of  the  state  in  which  the  controvery  is  pending,  and,  if 
the  court  in  question  would  have  jurisdiction  under  that 
law,  no  proof  of  its  jurisdiction  is  necessary.^  In  such 
case  it  would  devolve  upon  the  party  attacking  the  juris- 
diction to  prove  the  law  of  the  foreign  state,  in  order  to 
show  that  the  court  had  not  jurisdiction. 

If  certain  steps  are  necessary  to  be  taken  in  order  to 
give  the  court  jurisdiction  of  either  the  subject-matter  or 
of  the  person,  it  must  be  proved,  to  estabhsh  the  jurisdic- 
tion, that  all  of  the  steps  have  been  taken  in  the  manner 
and  within  the  time  prescribed,  unless  the  court  is  such  that 
the  facts  necessary  to  give  such  jurisdiction  will  be  pre- 
sumed.^ 

If  it  will  be  presumed  in  favor  of  the  jurisdiction  of  the 
court  that  the  steps  necessary  to  give  it  jurisdiction  have 
been  taken,  the  party  asserting  such  jurisdiction  may 
safely  rely  upon  this  presumption.     But  the  presumption 

record,  can  not  be  collaterally  attacked.  If  it  be  a  foreign  judgment, 
or  the  judgment  of  a  court  of  limited  jurisdiction,  or  the  want  of  juris- 
diction is  apparent  on  the  record,  it  can  be  collaterally  attacked  ;  for 
then  the  jurisdiction  is  not  presumed,  or  the  presumption  is  repelled  by 
the  record  itself,  and  the  judgment  is  an  absolute  nullity  if  the  want 
of  jurisdiction  in  fact  exists.  This  subject,  with  its  various  distinctions, 
was  carefully  considered  and  passed  upon  by  this  court  in  the  late 
cases  of  Sears  v.  Terry,  26  Conn.  273,  and  Sanford  v.  Sanford,  28  Id.  6; 
and  in  the  less  recent  ones  of  Pearce  v.  Olney,  20  Id.  544 ;  Wood  v.  Wat- 
kinson,  17  Id.  500  (44  Am.  Dec.  562) ;  and  Aldrich  v.  Kinney,  4  Id.  380 
(10  Am.  Dec.  151).  We  think  this  point  is  no  longer  open  to  dispute. 
See  likewise  2  Am.  Lead.  Cas.  (ed.  1857),  812;  Cook  v.  Darling,  18  Pick. 
393;  Granger  v.  Clark,  22  Me.  128 ;  and  Burgess  v.  Tweedy,  16  Conn.  39." 

1  Stultz  V.  The  State,  65  Ind.  492. 

2  Rape  V.  Heaton,  9  Wis.  328 ;  76  Am.  Dec.  269 ;  Walsh  v.  Dart,  12 
Wis.  635. 

^  Ante,  sec.  22 ;  post,  sec.  25. 


HOW    JURISDICTION    PROVED    AND    DISPROVED.  125 

of  jurisdiction  in  case  of  a  foreign  judgment  is  not  con- 
clusive, and  the  party  denying  the  jurisdiction  may  over- 
come it  by  proving  that  the  necessary  steps,  or  any  of 
them,  have  not  been  taken  as  required  by  law.  Where 
the  presumption  of  jurisdiction  prevails,  the  want  of  ju- 
risdiction is  a  defense.' 

A  distinction  is  made  between  the  statutes  and  the  con- 
stitutions of  other  states,  in  some  of  the  decisions,  it  being 
held  that  the  courts  will  take  judicial  notice  of  the  pro- 
visions of  the  constitution  of  a  sister  state,  and  that  a 
court  created  thereby  is  one  of  general  jurisdiction.^ 

If  the  court  is  one  of  general  jurisdiction,  but  is  not 
made  so  by  constitutional  provision,  the  fact  that  it  is  a 
court  of  general  jurisdiction  must  be  proved  in  order  to 
get  the  benefit  of  the  presumption  in  favor  of  the  juris- 
diction of  such  courts.^ 

There  is  a  marked  difference,  in  some  of  the  states,  be- 
tween the  manner  of  alleging  jurisdiction  in  a  court  and 
the  mode  of  proving  the  same  fact.  This  results  from 
statutory  provisions  authorizing  a  general  allegation  of 
jurisdiction  in  lieu  of  specific  allegations  of  the  facts 
showing  jurisdiction.  But  these  provisions  relate  to  the 
pleadings  and  not  to  the  evidence.  The  general  allega- 
tion of  jurisdiction  can  only  be  established  by  proof  of  the 
facts  necessary  to  show  jurisdiction.  >" 

Jurisdiction  of  the  person  may  be  proved  by  the  sum- 
mons or  other  notice  provided  for  and  tlie  return  of  the 
officer  showing  proper  service,  or  the  appearance  of  the 
defendant,  or,  where  constructive  service  is  allowed,  by  the 
production  of  the  necessary  affidavit  or  other  showing  re- 
quired, the  notice  given,  and  proof  of  its  publication.* 

The  general  rule  is  that  in  case  of  courts  of  inferior  ju- 
risdiction their  jurisdiction  must  be  proved  by  the  record, 

'  Shumway  v.  Stillman,  4  Cow.  (N.  Y.)  292;  15  Am.  Dec.  374;  Porter 
r.  Bronson,  29  How.  Pr.  292 ;  Eastern  Township  Bank  r.  Beebe,  53  Vt. 
177. 

'  Butcher  r.  The  Bank  of  Brownsville,  2  Kan.  70,  81 ;  83  Am.  Dec.  446. 

3  McLaughlin  v.  Nichols,  13  Abb.  Pr.  244. 

^  Knowles  v.  Gas-Light  &  Coke  Co.,  86  U.  S.  58 ;  Freeman  on  Judg., 
sees.  519-523;  Baldwin  v.  Webster,  G8  Ind.  133,  135. 


126  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

and  can  not  be  established  in  any  other  way.^  But  in 
some  of  the  decided  cases  this  rule  is  limited  to  such  juris- 
dictional facts  as  the  law  directs  to  be  set  forth  in  its 
records.^  When  not  required  to  be  set  out  in  the  record, 
they  may  be  proved  by  other  evidence.^ 

A  mere  recital  in  the  record,  tending  to  show  jurisdic- 
tion of  the  person,  is  controlled  by  the  return  of  the 
proper  officer,  which  is  itself  a  part  of  the  record  and  the 
best  evidence.* 

The  rule  that  the  finding  of  the  court  as  to  jurisdictional 
facts  is  conclusive  is  confined  to  matters  in  pais  to  be  es- 
tablished by  evidence,  and  does  not  extend  to  matters  of 
law  or  such  facts  as  must  appear  by  the  record.^ 

Thus  it  is  held  that,  where  certain  matters  must  appear 
in  a  petition  to  an  inferior  court  in  order  to  give  jurisdic- 
tion, the  finding  by  the  court  that  the  necessary  facts 
were  alleged  in  the  petition  is  not  conclusive  or  even 
'prima  facie  evidence  of  jurisdiction  where  the  petition  it- 
self shows  that  it  did  not  contain  the  required  allegations.® 
And  this  doctrine  has  been  extended  so  far  as  to  hold  that 
where  the  law  requires  that  a  petition  shall  be  filed  signed 
by  a  majority  or  some  other  certain  number  of  persons 
having  a  certain  qualification,  and,  the  petition  being 
signed  by  the  requisite  number,  the  court  finds  that  they 
are  possessed  of  the  required  qualification,  the  finding  is 
not  conclusive.^ 

There  is  a  clear  distinction  between  the  finding  of  a  fact 
necessary  to  give  jurisdiction  and  a  decision  that  the  court 

^  Ante,  sec.  22 ;  post,  sec.  25;  Freeman  on  Judg.,  sec.  518. 
'^  Freeman  on  Judg.,   sec.   518 ;   JoUey  v.   Foltz,   34  Cal.   321  ;   Van 
Deusen  v.  Sweet,  51  N.  Y.  379,  385 ;  People  v.  Hager,  49  Cal.  229. 
'  Van  Deusen  v.  Sweet,  51  N.  Y.  378. 

*  Freeman  on  Judg.,  sec.  519  ;  Lowe  v.  Alexander,  15  Cal.  296. 

*  In  re  Grove  Street,  61  Cal.  438,  447  ;  Levy  v.  Superior  Court,  66  Cal. 
292  ;  5  Pac.  Rep.  353. 

«  In  re  Grove  Street,  61  Cal.  438,  447 ;  Craig  v.  Town  of  Andes,  93  N. 
Y.  405. 

"<  Kahn  v.  Board  of  Supervisors,  79  Cal.  388,  396;  21  Pac.  Rep.  849; 
In  re  Madera  Irrigation  District,  92  Cal.  296,  331 ;  28  Pac.  Rep,  272. 


HOW    JURISDICTION    PROVED    AND    DISPROVED.  127 

has  jurisdiction,  as  a  matter  of  law,  and  the  latter  is  not 
binding.^ 

It  is  provided  by  the  federal  constitution  that  "  full  faith 
and  credit  shall  be  given  in  each  state  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  state."J 
And  such  faith  and  credit  will  be  given  to  the  judicial 
proceedings  of  a  court  of  another  state  when  such  pro- 
ceedings are  properly  authenticated  as  provided  by  law.^ 
But  before  such  faith  and  credit  can  be  given  to  a  record, 
it  must  lirst  be  shown  that  it  was  made  by  a  court  having 
jurisdiction  to  make  it.  As  we  have  seen,  the  presump- 
tion in  favor  of  the  jurisdiction  of  the  court  may  be  over- 
come by  proof  showing  that  it  had  not  jurisdiction.  But 
the  provision  of  the  federal  constitution  has  the  eifect  of 
placing- the  judgments  of  the  courts  of  another  state,  in 
this  country,  on  a  more  favorable  footing  than  the  judg- 
ments of  foreign  states  or  countries,  in  that  they  are  con- 
clusively binding  upon  the  parties  in  a  sister  state,  on  the 
merits,  and  may  be  enforced  by  suit  in  the  courts  of  the 
latter.*  But,  as  has  been  said,  in  order  to  the  enforcement 
of  such  a  judgment  in  another  state,  it  must  appear  that 
the  court  had  jurisdiction  of  the  subject-matter  and  of  the 
parties.  The  question  as  to  the  manner  in  which,  or  by 
what  evidence,  it  is  competent  to  prove  jurisdiction  or  a 
want  of  jurisdiction  in  such  cases,  is  one  of  great  difficulty, 
and  one  upon  which  the  authorities  are  numerous  and 
conflicting.  Of  course  a  want  of  jurisdiction  may  always 
be  proved  by  the  record  of  the  court  if  it  discloses  the 
fact.^  And  it  is  held  that  where  the  jurisdiction  of  a 
court,  whether  it  be  a  court  of  general  or  of  inferior  ju- 
risdiction, depends  upon  a  fact  which  it  is  required  to  as- 
certain and  determine  by  its  decision,  its  finding  of  the 

^  Wanzer  v.  Howland,  10  Wis.  7. 

^  Const.  U.  S.,  Art.  IV,  sec.  1.  »  Rev.  Stat.  U.  S.,  sec.  905. 

*Bissell  V.  Briggs,  9  Mass.  461;  6  Am.  Dec.  88;  Thompson  v.  Whit- 
man, 85  U.  S.  457  ;  Mills  v.  Duryee,  7  Cranch,  481  ;  McElmoyle  v.  Cohen, 
13  Pet.  312 ;  Shumway  v.  Stillman,  6  Wend.  447  ;  Wilson  v.  Jackson,  10 
Mo.  209. 
•    *  Hahn  v.  Kelly,  .34  Cal.  402  ;  94  Am.  Dec.  742. 


128  GENERAL   PRINCIPLES    AFFECTING   JURISDICTION. 

fact,  showing  its  jurisdiction,  is  conclusive  on  collateral 
attack.^ 

In  some  of  the  cases  this  is  placed  upon  the  ground  that 
the  action  of  the  court,  in  ascertaining  and  deciding  the 
fact  necessary  to  give  it  jurisdiction,  is  itself  an  exercise 
of  jurisdiction,  and  therefore  its  decision  upon  this  point, 
like  any  other,  is  conclusive  against  a  collateral  attack.^ 
Some  of  the  cases  go  still  further,  and  hold  that  where  the 
record  of  a  foreign  court  shows  it  has  jurisdiction,  whether 
such  jurisdiction  depends  upon  the  finding  of  a  fact  or 
not,  the  record  is  conclusive  against  a  collateral  attack.^ 
But  the  better  reason,  as  well  as  the  weight  of  authority, 
is  certainly  against  this  proposition.* 

^  Wells'  Jur.,  sec.  61 ;  Evansville,  etc.,  R.  R.  Co.  v.  City  of  Evansville, 
15  Ind.  395,  421 ;  Dowell  v.  Lahr,  97  Ind.  146,  153;  Otis  v.  De  Boer,  116 
Ind.  531 ;  19  N.  E.  Rep.  317  ;  Lessee  of  Fowler  v.  Whiteman,.2  Ohio  St. 
271,  286;  Lessee  of  Grignon  v.  Astor,  2  How.  319,  339;  Sargent  v.  State 
Bank  of  Indiana,  12  How.  371,  384 ;  People  v.  City  of  Rochester,  21 
Barb.  656,  670  ;  Freeman  on  Judg.,  sees.  522,  523;  Ex  parte  Sternes,  77 
Cal.  156,  162 ;  19  Pac.  Rep.  275 ;  Muncey  v.  Joest,  74  Ind.  409,  412 ;  Por- 
ter V.  Stout,  73  Ind.  3. 

'  Lessee  of  Grignon  v.  Astor,  2  How.  319,  339. 

'Mills  V.  Duryee,  7  Cranch,  481;  Lapham  v.  Briggs,  27  Vt.  26,  34; 
Wescott  V.  Brown,  13  Ind.  83;  Wetherill  v.  Stillman,  65  Pa.  St.  105,  113; 
Welch  V.  Sykes,  3  Gil.  (Ga.)  197;  44  Am.  Dec.  689;  Hall  v.  Williams,  23 
Mass.  232,  237;  17  Am.  Dec.  356;  Zepp  v.  Hager,  70  111.  223;  Wilcox  v. 
Kassick,  2  Mich.  165 ;  Watson  v  Balch,  30  Kan.  753 ;  1  Pac.  Rep.  777. 

*  Bissell  V.  Briggs,  9  Mass.  462 ;  6  Am.  Dec.  88 ;  Rape  v.  Heaton,  9  AVis. 
328,  332;  76  Am.  Dec.  269;  Thompson  v.  Whitman,  85  U.  S.  457; 
Knowles  v.  Gas  Light  &  Coke  Co.,  86  U.  S.  58;  Carleton  v.  Bickford,  13 
Gray,  591 ;  74  Am.  Dec.  652;  Hoffinan  v.  Hoffman,  46  N.  Y.  30;  7  Am. 
Rep.  299;  People  v.  Dowell,  25  Mich.  247;  12  Am.  Rep.  260;  Harshey  v. 
Blackmarr,  20  la.  161;  89  Am.  Dec.  520;  Marx  v.  Fore,  51  Mo.  69;  11 
Am.  Rep.  432 ;  Shumway  v.  Stillman,  6  Wend.  447  ;  McMinn  v.  Whelan, 
27  Cal.  300,  314 ;  Norwood  v.  Cobb,  24  Tex.  551 ;  Wilson  v.  Jackson,  10 
Mo.  209;  Starbuck  v.  Murray,  5  Wend.  148;  21  Am.  Dec.  172;  Common- 
wealth V.  Green,  17  Mass.  514,  545;  Gleason  v.  Dodd,  45  Mass.  333,  335; 
Pennoyer  v.  Neff,  95  U.  S.  714,  729;  D'Arcy  v.  Ketchum,  11  How.  165, 
173;  Pollard  v.  Baldwin,  22  la.  328;  Adams  v.  Washington,  etc.,  R.  R. 
Co.,  10  N.  Y.  328,  332;  Ferguson  v.  Crawford,  70  N.  Y.  253;  26  Am.  Rep. 
589;  AVatson  v.  Balch,  30  Kan.  753;  1  Pac.  Rep.  777;  Litowich  r.  Lito- 
wich,  19  Kan.  451,  455;  27  Am.  Rep.  145;  Mastin  v.  Gray,  19  Kan.  458; 
27  Am.  Rep.  149;  Rose  v.  Himely,  4  Cranch,  241,  268;  Porter  v.  Bron- 
sou,  29  How.  Pr.  292;  Moulin  v.  Insurance  Co.,  24  N.  J.  Law,  222. 


HOW    JURISDICTION    PROVED    AND    DISPROVED.  129 

It  is  a  most  remarkable  doctrine  that  a  court  that 
has  no  jurisdiction  to  proceed  in  a  cause  can,  neverthe- 
less, make  a  false  record,  binding  and  conclusive  upon 
parties  not  before  it,  by  which  its  jurisdiction  that  does 
not  exist,  is  established  beyond  dispute.  The  evident  ten- 
dency of  the  later  decisions  is  to  extend  the  right  to  con- 
test and  disprove  the  jurisdiction  of  courts,  in  opposition 
to  recitals  in  the  records,  many  of  the  cases  holding 
that  this  may  be  done  even  in  the  case  of  a  domestic  judg- 
ment.^ 

1  Mastin  v.  Gray,  19  Kan.  458,  462,  465;  27  Am.  Rep.  149 ;  Ferguson  v. 
Crawford,  70  N.  Y.  253 ;  26  Am.  Rep.  589 ;  Porter  v.  Bronson,  29  How. 
Pr.  292;  State  v.  Hudson,  37  Ind.  198. 

The  question  as  to  the  effect  of  recitals  in  a  record  was  fully  discussed 
in  the  case  of  Rape  v.  Heaton,  9  Wis.  328  (76  Am.  Dec.  269),  in  which 
the  cases  decided  up  to  that  time  were  carefully  reviewed.  In  that  case 
the  court  said:  "Assuming  the  record  offered  to  be  a  sufficient  record 
of  a  judgment  upon  which  to  sustain  an  action,  the  case  presents  sev- 
eral questions  of  much  interest,  which  were  discussed  on  the  argument. 
Ever  since  the  case  of  Bissell  v.  Briggs,  9  Mass.  462,  it  has  been  held 
that  the  judgments  of  other  states,  to  which  full  faith  and  credit  are 
required  to  be  given,  by  the  constitution  of  the  United  States,  are  only 
those  in  which  the  courts  rendering  them  had  jurisdiction  of  the  suits 
and  parties,  and  such  jurisdiction  has  been  allowed  to  be  questioned  by 
the  party  against  whom  such  iudgments  are  set  up. 

"  But  there  is  great  conflict  and  uncertainty  among  the  cases  as  to  the 
extent  of  this  right.  Some  courts  hold  the  doctrine  laid  down  by  the 
supreme  court  of  New  York,  in  Starbuck  v.  Murray,  5  Wend.  148,  that 
the  defendant  may  contradict  the  express  allegations  of  the  alleged 
record,  as  to  jurisdictional  facts,  on  the  ground  that,  if  there  was  no  ju- 
risdiction, then,  as  to  him,  it  is  no  record.  Other  cases  entirely  dissent 
from  this  rule,  and  some  have  criticized  it  with  some  severity.  Thus,  in 
Lincoln  v.  Tower,  2  McLean,  473,  Justice  McLean  denies  its  correctness, 
and  contends  that,  if  the  averments  in  the  record  as  to  jurisdictional 
facts  may  be  denied,  there  is  no  reason  why  any  other  facts  alleged  may 
not  as  well  be  denied.  And  in  Wilson  v.  Jackson,  10  Missouri  Rep.  334, 
the  court,  in  commenting  on  the  same  case,  asks :  '  Is  there  any  thing 
monstrous  in  the  proposition  that  a  record  should  be  conclusive  on  the 
question  of  jurisdiction,  any  more  than  it  should  be  conclusive  of  other 
facts  equally  fatal  to  the  interests  of  the  party  to  be  affected  by  the  judg- 
ment?' Now,  it  seems  to  me  that  this  question  may  readily  be  an- 
swered in  the  affirmative.  And  that  it  is  obviously  much  more  mon- 
strous to  say  that  a  party  shall  be  concluded  by  an  averment  in  a  record 
that  he  was  served  with  process,  from  showing  that  he  never  was  so 

9 


130  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

It  is  lield  by  the  Supreme  Court  of  the  United  States 

served,  and  that  the  court  never  had  any  jurisdiction  over  him,  than  to 
say,  such  jurisdiction  being  undisputed,  that  he  shall  be  bound  by 
the  other  averments  of  the  record.  Because  the  reason  upon  vi'hich  the 
conclusiveness  of  records  rests  is  that  the  parties  have  been  served,  have 
had  an  opportunity  to  defend  their  interests,  and  see  to  it  that  the  rec- 
ord is  truly  made  up.  And,  when  this  is  so,  there  is  nothing 'mon- 
strous' at  all  in  holding  them  bound  by  it.  But,  where  this  is  not  so, 
where  the  party  has,  in  fact,  never  been  served,  never  had  an  oppor- 
tunity to  defend,  to  hold  him  absolutely  concluded  by  a  false  averment 
in  the  record  to  the  contrary,  would  seem  to  be  the  very  essence  of 
injustice. 

"These  very  cases  admit  that,  if  the  want  of  jurisdiction  appears  on  the 
record  itself,  then  the  party  is  not  bound  by  it,  but  may  disregard  all  its 
averments.  So  the  Missouri  court,  and  others,  as  in  Hall  et  al.  v.  Will- 
iams et  al.,  6  Pick.  232,  admit  that,  where  the  record  is  silent  as  to  the 
jurisdictional  facts,  the  party  may  aver  and  prove  that  there  was  no  ju- 
risdiction, and  thus  destroy  the  effect  of  the  record.  This  can  only  be 
upon  the  ground  that,  if  there  was  no  jurisdiction,  then  the  pretended 
record  is  no  record,  and  the  doctrine  of  conclusiveness  does  not  appl)' 
to  it.  But  this  want  of  jurisdiction,  if  it  can  be  established,  would  have 
the  same  effect  upon  the  record  which  averred  the  facts  necessary  to 
show  jurisdiction,  as  upon  one  silent  as  to  them.  To  say,  therefore, 
that,  when  a  record  avers  such  facts,  a  party  shall  not  be  permitted  to 
deny  them,  because  that  is  contradicting  a  record,  does  seem,  as  Judge 
Marcy  says,  tc  be  assuming  the  whole  question,  for  the  question, 
whether  it  is  a  record  or  not,  is  the  very  thing  put  in  issue.  A  party 
would  probably  not  be  precluded  from  showing  that  a  paper  offered 
against  him  as  a  record  was  a  forgery.  But,  suppose  it  contained  an  al- 
legation that  it  was  not  a  forgery,  would  he  then  be  precluded  ?  Mani- 
festly not,  because,  on  the  theory  that  it  was  a  forgery,  the  allegation,  in 
itself  that  it  was  not  would  fall  with  the  rest  of  it.  So  of  these  aver- 
ments as  to  jurisdictional  facts.  It  there  was  no  jurisdiction,  they  fall 
with  the  rest  of  the  record.  And  to  give  such  averments  effect  as  rec- 
ords, in  determining  the  very  question  whether  they  are  entitled  to 
such  effect,  would  seem  to  be  a  method  of  determining  a  question  about 
as  unsatisfactory  as  could  well  be  devised.  " 

"  Where  the  record  is  silent  as  to  the  jurisdictional  facts,  and  the 
party  avers  that  he  was  never  served,  and  never  appeared,  etc.,  and  the 
court  allows  him  to  prove  that,  for  the  purpose  of  showing  a  want  of  ju- 
risdiction, it  necessarily  suspends  its  judgment  on  the  question  whether 
the  alleged  record  is  really  a  record,  until  the  question  of  jurisdiction  is 
determined.  And  I  can  see  no  reason  why  the  same  course  should  not 
be  pursued  where  the  alleged  record  avers  the  jurisdictional  facts,  and 
why  the  court  should  not  suspend  its  judgment  on  those  allegations  as 
well  as  the  others.  And  there  is  no  other  possible  way  of  avoiding  that 
extreme  of  injustice,  the  holding  of  a  party  bound  by  a  record  of  a 


i 


HOW    JLTRISDICTION    PROVED    AND    DISPROVED.  131 

that  it  is  competent  to  show,  where  a  foreign  judgment  is 

proceeding  of  which  he  never  had  notice,  or  opportunity  to  defend  him- 
self. And  it  is  no  answer  to  say  that  to  allow  such  proof  is  to  contra- 
dict a  record,  for  this  is  assuming  the  whole  issue,  inasmuch  as  if  there 
was  no  jurisdiction  ;  then,  according  to  all  the  authorities,  these  allega- 
tions are  not  a  record.  And  to  give  them  that  effect,  in  determining 
the  very  question  whether  they  are  entitled  to  that  effect  or  not,  is  a 
rule  of  decision  the  logic  or  justice  of  which  I  am  totally  unable  to  per- 
ceive. It  is  allowing  that  which  is  not,  in  truth,  a  record  to  make  itself 
one  by  a  false  allegation  that  it  is  one. 

"  It  is  jurisdiction  only  that  gives  to  a  reconl  its  character  of  conclu- 
siveness. It  is,  therefore,  logically  impossible,  whatever  it  may  be  le- 
gally, to  make  a  record  without  jurisdiction  that  shall  be  conclusive  as 
to  jurisdictional  averments  or  any  other.  When  it  is  conceded,  there- 
fore, that,  if  the  record  is  silent  on  the  subject,  a  want  of  jurisdiction 
may  be  shown  to  defeat  it,  I  can  not  comprehend  how,  even  though  it 
contain  the  necessary  averments,  the  court  can  refuse  to  inquire  on  the 
ground  that  it  is  estopped  by  a  record,  for,  by  its  own  concession,  if  the 
inquiry  was  made,  it  might  appear  that  the  pretended  record  was  an 
entire  nullity.  I  can  see,  therefore,  no  reason  for  any  distinction  as  to 
the  right  of  the  party  to  inquire  into  the  jurisdiction,  between  cases 
where  the  record  is  silent  as  to,  and  those  where  it  avers,  the  facts  nec- 
essary to  show  it.  And  the  learned  writer  of  the  notes  to  the  'American 
Leading  Cases,'  2d  vol.,  788,  intimates  that  there  is  'no  middle  ground 
between  throwing  the  whole  question  of  jurisdiction  open  to  examina- 
tion,' and  holding  the  records  conclusive  in  all  cases,  as  well  as  to  juris- 
diction as  to  every  thing  else. 

'•  Which  of  these  rules  is  the  true  one  is  a  question  of  vital  interest. 
1  confess  that  to  my  own  mind  the  rule  laid  down  in  Starbuck  r.  Mur- 
ray seems  so,  if  the  question  is  to  be  decided  upon  principle.  How  it 
would  be  held  upon  the  weight  of  authority,  is  much  more  doubtful. 

'•  When  the  case  of  Mills  v.  Duryee,  7  Cranch,  481,  was  first  decided, 
it  was  very  generally  supposed  to  have  settled  the  question  against  the 
right  to  inquire  into  the  jurisdiction  iti  any  case.  Thus  it  was  so  con- 
sidered in  Commonwealth  v.  Green,  17  Mass.  54.5.  But  afterward,  in 
Hall  V.  AVilliams,  6  Pick.  2',V.],  before  cited,  that  court  said  that  in  its 
former  decision  it  had  '  yielded  a  painful  deference '  to  the  case  of  Mills 
)■.  Duryee,  without  close  examination,  and  on  reviewing  the  matter, 
held  that  the  jurisdiction  might  be  inquired  into,  where  the  record  was 
silent  on  the  subject.  Though  the  court  said,  if  it  appeared  by  the  rec- 
ord that  the  defendant  had  notice  or  appeared  in  defense,  they  were 
'  inclined  to  think  it  could  not  be  gainsayed.'  But  in  Ewer  r.  Coffin,  1 
Cash.  23,  this  remark  is  called  a  '  dictum  '  of  Chief-Justice  Parker  ;  and 
this  case,  as  well  as  that  of  Gleason  v.  Dodd,  4  Met.  3,33,  indicates  a  de- 
cided leaning  in  favor  of  the  right  of  inquiring  into  the  jurisdiction. 
This  right  seems  essential  for  the  purpose  of  preventing  the  courts  of 
one  state  from  assuming  a  jurisdiction  over  the  citizens  of  another,  who 


132  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

pleaded,    not    only  that  the   constitution  of  the   court  is 

have  never  been  within  its  actual  jurisdiction,  or  where  they  could  be 
legally  served  with  its  process.  But  if  it  be  once  established  that  an 
averment  in  a  record,  showing  legal  service,  can  never  be  controverted, 
such  an  unwarrantable  jurisdiction  can  easily  be  assumed  and  exer- 
cised. For  any  state  which  desires  to  bind  the  citizens  of  other  states 
by  litigation  in  its  own  courts,  may  readily  provide  that  notice  may  be 
sent  to  them  in  the  states  where  they  reside  ;  but  that  its  record  shall, 
by  a  fiction,  be  so  made  up  as  to  show  personal  service  within  its  lim- 
its. Then,  when  the  record  was  sent  to  the  state  where  the  party  re- 
sided, to  be  enforced,  he  would  be  bound  by  it,  and  could  not  aver  to 
the  contrary.  The  tendency  of  decisions  in  the  state  courts  has  there- 
fore been  to  restrict  the  oiieratioa  of  the  decision  in  Mills  v.  Duryee  to 
the  narrowest  possible  limits,  and  to  assert  as  far  as  possible  the  right  to 
inquire  into  the  jurisdiction.  There  are,  however,  very  many  author- 
ities which  hold  that  where  the  record  expressly  avers  the  facts  neces- 
sary to  show  jurisdiction,  it  can  not  be  controverted.  They  are  most  of 
them  referred  to  in  2  Am.  Leading  Cases,  and  the  subject  is  very  fairly 
presented  in  the  case  of  Wilcox  et  al.  v.  Kassick,  2  Mich.  165." 

And  the  subject  was  before  the  Supreme  Court  of  the  United  States, 
in  Thompson  v.  Whitman,  85  U.  S.  457,  where  the  law  is  declared  as 
follows :  "  The  act  of  congress  above  referred  to,  which  was  passed 
26tli  of  May,  1790  (1  Stat,  at  L.  122),  after  providing  for  the  mode  of  au- 
thenticating the  acts,  records,  and  judicial  proceedings  of  the  states, 
declares,  '  and  the  said  records  and  judicial  proceedings,  authenticated 
as  aforesaid,  shall  have  such  faith  and  credit  given  to  them  in  every 
court  within  the  United  States  as  they  have  by  law  or  usage  in  the 
courts  of  the  state  from  whence  the  said  records  are  or  shall  be  taken.' 
It  has  been  supposed  that  this  act,  in  connection  with  the  constitutional 
provision  which  it  was  intended  to  carry  out,  had  the  effect  of  render- 
ing the  judgments  of  each  state  equivalent  to  domestic  judgments  in 
every  other  state,  or  at  least  of  giving  to  them  in  every  other  state  the 
same  effect,  in  all  respects,  w'hich  they  have  in  the  state  where  they  are 
rendered.  And  the  language  of  this  court  in  Mills  v.  Duryee,  7  Cranch, 
484,  seemed  to  give  countenance  to  this  idea.  The  court  in  that  case 
held  that  the  act  gave  to  the  judgment  of  each  state  the  same  conclu- 
sive effect,  as  records,  in  all  the  states,  as  they  had  at  home  ;  and  that 
nil  debet  could  not  be  pleaded  to  an  action  brought  thereon  in  another 
state.  This  decision  has  never  been  departed  from  in  relation  to  the 
general  efiect  of  such  judgments  where  the  questions  raised  were  not 
questions  of  jurisdiction.  But  where  the  jurisdiction  of  the  court 
which  rendered  the  judgment  has  been  assailed,  quite  a  different  view 
has  prevailed.  Justice  Story,  who  pronounced  the  judgment  in  Mills  v. 
Duryee,  in  his  Commentary  on  the  Constitution,  after  stating  the  gen- 
eral doctrine  established  by  that  case  with  regard  to  the  conclusive  ef- 
fect of  judgments  of  one  state  in  every  other  state,  adds :  '  But  this  does 
not  prevent  an  inquiry  into  the  jurisdiction  of  the  court  in  which  the 


HOW    JURISDICTION    PROVED    AND    DISPROVED.  133 

such    that    it  had  not  jurisdiction   of  the   subject-matter 

original  judgment  was  given,  to  pronounce  it,  or  the  right  of  the  state 
itself  to  exercise  authority  over  the  person  or  the  subject-matter.  The 
constitution  did  not  mean  to  confer  (upon  the  states)  a  new  power  or 
jurisdiction,  but  simply  to  regulate  the  effect  of  the  acknowledged  4u- 
risdiction  over  persons  and  things  within  their  territory.'  Sec.  1313. 
In  the  Commentary  on  the  Conflict  of  Laws,  sec.  609,  substantially  the 
same  remarks  are  repeated,  with  this  addition:  'It  (the  constitution) 
did  not  make  the  judgments  of  other  states  domestic  judgments  to  all 
intents  and  purposes,  but  only  gave  a  general  validity,  faith  and  credit 
to  them  as  evidence.  No  execution  can  issue  upon  such  judgments 
without  a  new  suit  in  the  tribunals  of  other  states.  And  they  enjoy 
not  the  right  of  priority  or  lien  which  they  have  in  the  state  where  they 
are  pronounced,  but  that  only  which  the  lex  fori  gives  to  them  by  its 
own  laws  in  their  character  of  foreign  judgments.'  Many  cases  in  the 
state  courts  are  referred  to  by  Justice  Story  in  support  of  this  view. 
Chancellor  Kent  expresses  the  same  doctrine  in  nearly  the  same  words, 
in  a  note  to  his  Commentaries,  vol.  1,  p.  281.  '  The  doctrine  in  Mills  v. 
Duryee,'  says  he,  '  is  to  be  taken  with  the  qualification  that  in  all  in- 
stances the  jurisdiction  of  the  court  rendering  the  judgment  may  be 
inquired  into,  and  the  plea  of  nil  debet  will  allow  the  defendant  to  show 
that  the  court  had  no  jurisdiction  over  his  person.  It  is  only  when  the 
jurisdiction  of  the  court  in  another  state  is  not  impeached,  either  as  to 
the  subject-matter  or  the  person,  that  the  record  of  the  judgment  is  en- 
titled to  full  faith  and  credit.  The  court  must  have  had  jurisdiction 
not  only  of  the  cause,  but  of  the  parties,  and  in  that  case  the  judgment 
is  final  and  conclusive.'  The  learned  commentator  adds,  however,  this 
qualifying  remark:  'A  special  plea  in  bar  of  a  suit  on  a  judgment  in 
another  state,  to  be  valid,  must  deny,  by-positive  averments,  every  fact 
which  would  go  to  show  that  the  court  in  another  state  had  jurisdiction 
of  the  person,  or  of  the  subject-matter.'  See,  also,  2  Kent's  Com.  95, 
note,  and  cases  cited. 

"  In  the  case  of  Hampton  v.  McConnel,  3  Wheat.  234,  this  court  reit- 
erated the  doctrine  of  Mills  v.  Duryee,  that '  the  judgment  of  a  state 
court  should  have  the  same  credit,  validity,  and  effect  in  every  other 
court  of  the  United  States  which  it  had  in  the  state  courts  where  it  was 
pronounced  ;  and  that  whatever  pleas  would  be  good  to  a  suit  therein 
in  such  state,  and  none  others,  could  be  pleaded  in  any  court  in  the 
United  States.'  But  in  the  subsequent  case  of  McElmoyle  v.  Cohen,  13 
Pet.  312,  the  court  explained  that,  neither  in  Mills  v.  Duryee,  nor  in 
Hampton  v.  McConnel,  was  it  intended  to  exclude  pleas  of  avoidance 
and  satisfaction,  such  as  payment,  statute  of  limitations,  etc.;  or  pleas 
denying  the  jurisdiction  of  the  court  in  which  the  judgment  was  given  ; 
and  quoted,  with  approbation,  the  remark  of  Justice  Story,  that  *  the 
constitution  did  not  mean  to  confer  a  new  power  of  jurisdiction,  but 
simply  to  regulate  the  effect  of  the  acknowledged  jurisdiction  over  per- 
sons and  things  within  the  state.' 

"The  case  of  Landes  v.  Brant,  10  How.  348,  has  been  quoted  to  show 


134  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

generally,  but  that  the  particular  property  iu  controversy 

that  a  judgment  can  not  be  attacked  in  a  collateral  proceeding.  There 
a  judgment  relied  on  by  the  defendant  was  rendered  in  the  Territory  of 
Louisiana  in  1808,  and  the  objection  to  it  was  that  no  return  appeared 
upon  the  summons,  and  the  defendant  was  proved  to  have  been  absent 
in  Mexico  at  the  time;  but  the  judgment  commenced  in  the  usual 
form — 'And  now  at  this  day  come  the  parties  aforesaid  by  their  attor- 
neys,' etc.  The  court  pertinently  remarked  (p.  371)  that  the  defendant 
may  have  left  behind  counsel  to  defend  suits  brought  against  him  in  his 
absence,  but  that,  if  the  recital  was  false  and  the  judgment  voidable  for 
want  of  notice,  it  should  have  been  set  aside  by  audita  querela  or  motion 
in  the  usual  way,  and  could  not  be  impeached  collaterally.  Here  it  is 
evident  the  proof  failed  to  show  want  of  jurisdiction.  The  party  assail- 
ing the  judgment  should  have  shown  that  the  counsel  who  appeared 
were  not  employed  by  the  defendant,  according  to  the  doctrine  held  in 
the  cases  of  Shumway  v.  Stillman,  6  Wend.  453;  Aldrich  v.  Kinney,  4 
Conn.  380,  and  Price  v.  Ward,  1  Dutch.  225.  The  remark  of  the  court 
that  the  judgment  could  not  be  attacked  in  a  collateral  proceeding  was 
unnecessary  to  the  decision,  and  was,  in  effect,  overruled  by  the  subse- 
quent cases  of  D'Arcy  v.  Ketchum  and  Webster  v.  Reid.  D'Arcy  v. 
Ketchum,  11  How.  165,  was  an  action  in  the  circuit  court  of  the  United 
States  for  Louisiana,  brought  on  a  judgment  rendered  in  New  York 
under  a  local  statute,  against  two  defendants,  only  one  of  whom  was 
served  with  process,  the  other  being  a  resident  of  Louisiana.  In  that 
case  it  was  held  by  this  court  that  the  judgment  was  void  as  to  the  de- 
fendant not  served,  and  that  the  law  of  New  York  could  not  make  it 
valid  outside  of  that  state  ;  that  the  constitutional  provisions  and  act  of 
congress,  giving  full  faith,  credit,  and  effect  to  the  judgments  of  each 
state  in  every  other  state,  do  not  refer  to  judgments  rendered  by  a  court 
having  no  jurisdiction  of  the  parties;  that  the  mischief  intended  to  be 
remedied  was  not  only  the  inconvenience  of  retrying  a  cause  which  had 
once  been  fairly  tried  by  a  competent  tribunal,  but  also  the  uncertainty 
and  confusion  that  prevailed  in  England  and  this  country  as  to  the 
credit  and  effect  which  should  be  given  to  foreign  judgments,  some 
courts  holding  that  they  should  be  conclusive  of  the  matters  adjudged, 
and  others  that  they  should  be  regarded  as  only  prima  facie  binding. 
But  this  uncertainty  and  confusion  related  only  to  valid  judgments; 
that  is,  to  judgments  rendered  in  a  cause  in  which  the  court  had  juris- 
diction of  the  parties  and  cause,  or  (as  might  have  been  added)  in  pro- 
ceedings in  rem,  where  the  court  had  jurisdiction  of  the  res.  No  effect 
was  ever  given  by  any  court  to  a  judgment  rendered  by  a  tribunal 
which  had  not  such  jurisdiction.  'The  international  law,  as  it  existed 
among  the  states  in  1790,'  say  the  court,  '  was  that  a  judgment  rendered 
in  one  state,  assuming  to  bind  the  person  of  a  citizen  of  another,  was 
void  within  the  foreign  state,  when  the  defendant  had  not  been  served 
with  process  or  voluntarily  made  defense,  because  neither  the  legis- 
lative  jurisdiction,  nor  that   of  courts   of  justice,  had   binding  force. 


HOW    JURISDICTION    PROVED    AND    DISPROVED.  135 

-was  not  within  its  jurisdiction.'     It  is   also  held,  in  some 

Subject  to  this  established  principle,  congress  also  legislated ;  and  the 
question  is,  whether  it  was  intended  to  overthrow  this  principle  and 
to  declare  a  new  rule,  which  would  bind  the  citizens  of  one  state  to  the 
laws  of  another.  There  was  no  evil  in  this  part  of  the  existing  law,  and 
no  remedy  called  for,  and  in  our  opinion  congress  did  not  intend  to' 
overthrow  the  old  rule  by  the  enactment  that  such  faith  and  credit 
should  be  given  to  records  of  judgments  as  they  had  in  the  states  where 
made.'     P.  176. 

"In  the  subsequent  case  of  Webster  v.  Reid,  11  How.  437,  the  plaint- 
iff claimed,  by  virtue  of  a  sale  made  under  judgments  in  behalf  of  one 
Johnson  and  one  Brigham  against  '  The  Owners  of  Half-breed  Lands 
Lying  in  Lee  County,'  Iowa  Territory,  in  pursuance  of  a  law  of  the  ter- 
ritory. The  defendant  offered  to  prove  that  no  service  had  ever  been 
made  upon  any  person  in  the  suits  in  which  the  judgments  were  ren- 
dered, and  no  notice  by  publication  as  required  by  the  act.  This  court 
held  that,  as  there  was  no  service  of  process,  the  judgments  were  nul- 
lities. Perhaps  it  appeared  on  the  face  of  the  judgments  in  that  case 
that  no  service  was  made ;  but  the  court  held  that  the  defendant  was 
entitled  to  prove  that  no  notice  was  given,  and  that  none  was  pub- 
lished. 

'•  In  Harris  v.  Hardeman,  14  How.  334,  which  was  a  writ  of  error  to  a 
judgment  held  void  by  the  court  for  want  of  service  of  process  on  the 
defendant,  the  subject  now  under  consideration  was  gone  over  by  Mr. 
Justice  Daniel  at  some  length,  and  several  cases  in  the  state  courts  were 
cited  and  approved,  which  held  that  a  judgment  may  be  attacked  in  a 
collateral  proceeding  by  showing  that  the  court  had  no  jurisdiction  of 
the  person,  or,  in  proceedings  in  rem,  no  jurisdiction  of  the  thing. 
Among  other  cases  quoted,  were  those  of  Borden  v.  Fitch,  15  Johns. 
141.  and  Starbuck  r.  Murray,  5  Wend.  156;  and  from  the  latter  the  fol- 
lowing remarks  were  quoted  with  apparent  approval :  '  But  it  is  con- 
tended that,  if  other  matter  may  be  pleaded  by  the  defendant,  he  is  es- 
topped from  asserting  any  thing  against  the  allegation  contained  in  the 
record.  It  imports  perfect  verity,  it  is  said,  and  the  parties  to  it  can 
not  be  heard  to  impeach  it.  It  appears  to  me  that  this  proposition  as- 
sumes the  very  fact  to  be  established,  which  is  the  only  question  in  is- 
sue. For  what  purpose  does  the  defendant  question  the  jurisdiction  of 
the  court?  Solely  to  show  that  its  proceedings  and  judgment  are  void, 
and,  therefore,  the  supposed  record  is,  in  truth,  no  record.  .  .  - .  The 
plaintiffs,  in  effect,  declare  to  the  defendant — the  paper  declared  on  is  a 
record,  because  it  says  you  appeared,  and  you  appeared  because  the  pa- 
per is  a  record.'     This  is  reasoning  in  a  circle. 

■'The  subject  is  adverted  to  in  several  subsequent  cases  in  this  court, 
and  generally,  if  not  universally,  in  terms  implying  acquiescence  in  the 
doctrine  stated  in  D'Arcy  v.  Ketchum,  supra.     Thus,  in  Christmas  v. 


1  Rose  V.  Hiraely,  4  Cranch,  241,  268. 


136  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION, 

of  the    cases,  that,  where    the    court    is    one    of  general 

Russell,  5  Wall.  290,  where  the  court  decided  that  fraud  in  obtain- 
ing a  judgment  in  another  state  is  a  good  ground  of  defense  to  an 
action  on  the  judgment,  it  was  distinctly  stated  (p.  305)  in  the 
opinion,  that  such  judgments  are  open  to  inquiry  as  to  the  jurisdic- 
tion of  the  court,  and  notice  to  the  defendant.  And  in  a  number  of 
cases,  in  which  was  questioned  the  jurisdiction  of  a  court,  whether  of 
the  same  or  another  state,  over  the  general  subject-matter  in  which  the 
particular  case  adjudicated  was  embraced,  this  court  has  maintained  the 
same  general  language.  Thus,  in  Elliott  v.  Peirsol,  1  Pet.  328,  340,  it 
was  held  that  the  Circuit  Court  of  the  United  States  for  the  District 
of  Kentucky,  might  question  the  jurisdiction  of  a  county  court  of  that 
state  to  order  a  certificate  of  acknowledgment  to  be  corrected;  and  for 
want  of  such  jurisdiction  to  regard  the  order  as  void.  Justice  Trimble, 
delivering  the  opinion  of  this  court  in  that  case,  said :  '  Where  a  court 
has  jurisdiction,  it  has  a  right  to  decide  every  question  which  occurs  in 
the  cause,  and  whether  its  decision  be  correct  or  otherwise,  its  judg- 
ment, until  reversed,  is  regarded  as  binding  in  every  other  court.  But, 
if  it  act  without  authority,  its  judgments  and  orders  are  regarded  as 
nullities.     They  are  not  voidable,  but  simply  void.' 

"  The  same  views  were  repeated  in  U.  S.  v.  Arredondo,  6  Pet.  691 ;  Voor- 
hees  V.  Bk.,  10  Pet.  475 ;  Wilcox  v.  Jackson,  13  Pet.  511 ;  Shriver  v.  Lynn, 
2  How.  59,  60;  Hickey  v.  Stewart,  3  How.  762,  and  Williamson  v.  Berry, 
8  How.  540.  In  the  latter  case  the  authorities  are  reviewed,  and  the 
court  say :  '  The  jurisdiction  of  any  court  exercising  authority  over  a 
subject  may  be  inquired  into  in  every  other  court  when  the  proceedings 
in  the  former  are  relied  upon  and  brought  before  the  latter  by  a  party 
claiming  the  benefit  of  such  proceedings;'  and  'the  rule  prevails 
whether  the  decree  or  judgment  has  been  given  in  a  court  of  admir- 
alty, chancery,  ecclesiastical  court,  or  court  of  common  law,  or  whether 
the  point  ruled  has  arisen  under  the  laws  of  nations,  the  practice  in 
chancery,  or  the  municipal  laws  of  states.' 

"  But  it  must  be  admitted  that  no  decision  has  ever  been  made  on  the 
precise  point  involved  in  the  case  before  us,  in  which  evidence  was  ad- 
mitted to  contradict  the  record  as  to  jurisdictional  facts  asserted 
therein,  and  especially  as  to  facts  stated  to  have  been  passed  upon  by 
the  court. 

"  But  if  it  is  once  conceded  that  the  validity  of  a  judgment  may  be  at- 
tacked collaterally  by  evidence  showing  that  the  court  had  no  jurisdic- 
tion, it  is  not  perceived  how  any  allegation  contained  in  the  record  it- 
self, however  strongly  made,  can  affect  the  right  so  to  question  it.  The 
very  object  of  the  evidence  is  to  invalidate  the  paper  as  a  record.  If 
that  can  be  successfully  done,  no  statements  contained  therein  have  any 
force.  If  any  such  statements  could  be  used  to  prevent  inquiry,  a  slight 
form  of  words  might  always  be  adopted  so  as  effectually  to  nullify  the 
right  of  such  inquiry.  Recitals  of  this  kind  must  be  regarded  like  as- 
severations of  good  faith  in  a  deed,  which  avail  nothing  if  the  instru- 


HOW    JURISDICTION    PROVED    AND    DISPROVED.  137 

jurisdiction     its    want     of    jurisdiction,    when     brought 

ment  is  shown  to  be  fraudulent.  The  records  of  the  domestic  tribunals 
of  England,  and  some  of  the  states,  it  is  true,  are  held  to  import  abso- 
lute verit}'  as  well  in  relation  to  jurisdictional  as  to  other  facts,  in  all 
collateral  proceedings.  Public  policy  and  the  dignity  of  the  courts  are 
supposed  to  require  that  no  averment  shall  be  admitted  to  contra- 
dict the  record.  But.  as  we  have  seen,  that  rule  has  no  extra-terri- 
torial force. 

"  It  may  be  observed  that  no  courts  have  more  decidedly  affirmed  the 
doctrine  that  want  of  jurisdiction  may  be  shown  by  proof  to  invalidate 
the  judgments  of  the  courts  of  other  states  than  have  the  courts  of 
New  Jersey.  The  subject  was  examined,  and  the  doctrine  affirmed, 
after  a  careful  review  of  the  cases,  in  the  case  of  Moulin  r.  Ins.  Co.,  in 
4  Zeb.  222,  and  again  in  the  same  case  in  1  Dutch,  p.  57,  and  in  Price  v. 
"Ward,  1  Dutch.  225,  and  as  lately  as  November,  1870,  in  the  case  of 
Mackay  v.  Gordon,  34  N.  J.  L.  286.  The  judgment  of  Chief  Justice 
Beasley  in  the  last  case  is  an  able  exposition  of  the  law.  It  was  a  case 
similar  to  that  of  D'Arcy  v.  Ketchum  {supra),  being  a  judgment  ren- 
dered in  New  York  under  the  statutes  of  that  state,  before  referred  to, 
against  two  persons,  one  of  whom  was  not  served  with  process.  '  Every 
independent  government,'  says  the  Chief  Justice,  '  is  at  liberty  to  pre- 
scribe its  own  methods  of  judicial  process,  and  to  declare  by  what 
forms  parties  shall  be  brought  before  its  tribunals.  But,  in  the  exer- 
cise of  this  power,  no  government,  if  it  desires  extra-territorial  recog- 
nition of  its  acts,  can  violate  those  rights  which  are  universally  esteemed 
fundamental  and  essential  to  society.  Thus,  a  judgment  by  the  court 
of  a  state  against  a  citizen  of  such  state,,  in  his  absence,  and  without 
any  notice,  express  or  implied,  would,  it  is  presumed,  be  regarded  in 
every  external  jurisdiction  as  absolutely  void  and  unenforceable. 
Such  would  certainly  be  the  case  if  such  judgment  was  as  rendered 
against  the  citizen  of  a  foreign  state.' 

"  On  the  whole,  we  think  it  clear  that  the  jurisdiction  of  the  court  by 
which  a  judgment  is  rendered  in  any  state  may  be  questioned  in  a  col- 
lateral proceeding  in  another  state,  notwithstanding  the  provision  of 
the  4th  article  of  the  constitution  and  the  law  of  1790,  and  not- 
withstanding the  averments  contained  in  the  record  of  the  judgment 
itself." 

"  In  Massachusetts  the  doctrine  has  been  thus  stated :  "  Soon  after  the 
promulgation  of  these  provisions  of  the  constitution  and  law'  of  the 
United  States,  great  diversity  of  judicial  opinion  arose,  as  to  their  true 
construction.  By  some  it  was  contended  that  congress  did  intend  to  de- 
clare, not  only  what  should  be  deemed  conclusive  proof  of  records  of 
the  judgments  of  one  state  in  the  courts  of  another,  but  their  legal  ef- 
fect. They  considered  that  the  effect  of  this  law  was  to  put  them  in  all 
respects  on  the  same  footing  of  domestic  judgments,  so  that  to  an  ac- 
tion of  debt  on  such  judgment,  no  plea  would  be  admissible,  but  that 
which  denied  the  existence  of  the  judgment,  and  nothing  was  put  in  is- 


138  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

collaterally    in     question,    can     only    bo     disproved     by 

sue,  but  that  fact,  and  that  to  be  tried  by  the  court  by  an  inspection  of 
the  transcript  of  the  record,  authenticated  in  the  manner  required  by 
the  act  of  congress.  Noble  r.  Gold,  1  Mass.  410,  note.  By  others  it  was 
held  that  the  act  did  nothing  more  than  declare  that  the  record  of  the 
judgment  of  another  state,  thus  authenticated,  should  be  conclusive  evi- 
dence that  such  judgment  was  passed,  by  a  court  of  such  state,  of  the 
parties  between  whom,  the  nature  of  the  action,  and  the  other  facts  ex- 
pressly stated  in  it,  leaving  the  effect  of  such  judgment  to  be  ascer- 
tained by  the  rules  of  the  common  law.  At  common  law  it  seemed  to 
be  well  understood  that  the  legal  effect  of  such  foreign  judgment  was 
this :  that  it  was  prima  facie  evidence  of  debt,  for  which  an  action  of 
debt,  or  indebitatus  assumpsit  as  upon*  implied  promise,  would  lie,  but 
like  all  other  prima  facie  evidence,  it  might  be  controlled  by  proof,  show- 
ing that  the  judgment  was  irregular  or  erroneous,  that  the  defendant 
had  no  opportunity  to  defend,  or  was  not  summoned,  or  that  he  had 
good  ground  of  defense  ;  or,  in  short,  by  proof  tending  to  outweigh  the 
evidence  arising  from  such  judgment.  Such  were  the  grounds  of  de- 
cision, in  the  earliest  case  fully  reported  in  this  commonwealth.  Bart- 
let  V.  Knight,  1  Mass.  401.  The  same  views  seem  to  have  been  adopted 
in  other  states.  It  is  not,  however,  my  intention  to  go  into  a  general 
review  of  the  cases,  but  merely  to  allude  to  the  progress  of  judicial 
opinion  on  the  subject. 

"  In  Bissell  v.  Briggs,  9  Mass.  462,  the  subject  underwent  great  consid- 
eration, and  an  elaborate  opinion  was  pronounced  by  Parsons,  C.  J. 
The  ground  taken  was,  that  the  judgment  of  another  state  would  be 
conclusive  of  the  merits,  provided  the  court  by  whom  it  was  rendered 
had  jurisdiction  of  the  subject-matter,  and  of  the  parties;  but  if  it  ap- 
peared to  be  rendered  by  a  court  not  having  jurisdiction  of  the  parties 
— as  against  one  not  an  inhabitant  within  the  state,  not  arrested  or  sum- 
moned, or  for  any  cause  not  amenable  to  its  process,  or  not  actually 
brought  within  it  by  proper  service,  it  would  not  be  binding.  As  a  nec- 
essary consequence  of  this  doctrine,  it  followed  that  it  is  competent  for  a 
defendant,  sued  on  such  judgment,  under  a  proper  plea,  to  put  in  issue 
every  fact  necessary  to  try  the  question  of  such  jurisdiction.  In  this 
opinion  Mr.  Justice  Sewall  did  not  concur;  adhering  to  the  opinion 
which  he  had  before  expressed  in  Bartlet  v.  Knight. 

"About  the  same  time  the  case  of  Mills  v.  Duryea,  7  Cranch,  481,  came 
before  the  supreme  court  of  the  United  States,  in  which  it  was  sup- 
posed they  went  further  than  the  case  of  Bissell  v.  Briggs,  and  held  that 
the  judgment  of  another  state  was  in  all  respects  conclusive,  like  that 
of  a  domestic  judgment.  But  a  careful  consideration  of  that  case  will 
show  tliat  no  question  was  there  raised  as  to  the  right  of  the  defendant, 
in  an  action  of  debt  on  such  judgment,  to  contest  the  actual  jurisdir 
tion  of  the  court  in  which  the  judgment  was  rendered;  and  the  point 
whether  it  was  open  to  such  inquiry  was  not  before  the  court.  On 
the  contrarv,  Mr.  Justice  Story,  in  giving  the  opinion  of  the  court,  says. 


now    JURISDICTION    PROVED    AND    DISPROVED.  139 

facts  or  circumstances  appearing  on  the  face  of  the 
record.^ 

that  in  the  case  then  before  them,  it  appeared  that '  the  defendant  had 
full  notice  of  the  suit,  for  he  was  arrested  and  gave  bail,  and  it  is  be- 
j'ond  all  doubt  that  the  judgment  of  the  supreme  court  of  New  York 
was  conclusive  upon  the  parties  in  that  state.  It  must,  therefore,  be 
conclusive  here  also.'  The  point  of  jurisdiction  was  not  judicially- 
determined  ;  and,  therefore,  that  case  did  not  go  further  in  holding 
such  judgments  conclusive  than  that  of  Bissell  v.  Briggs.  See  Hampton 
V.  M'Connel,  3  Wheat.  234,  and  the  reporter's  note.  M'Elmoyle  v. 
Cohen,  13  Pet.  312;  1  Kent.  Com.  (4th  ed.)  261,  note. 

In  this  commonwealth,  the  last  case,  in  which  the  subject  has  been 
discussed,  former  decisions  reviewed,  modified  and  reconciled  with  each 
other,  and  the  whole  doctrine  placed  upon  intelligible  and  practicable 
principles,  is  that  of  Hall  v.  Williams,  6  Pick.  232.  This  case,  after  a 
full  discussion  and  review  of  all  the  authorities,  fully  recognizes  the  prin- 
ciple laid  down  in  Bissell  v.  Briggs,  to  the  effect  that  the  judgments  of 
other  states  may  be  declared  on  as  records  and  evidences  of  debt ;  that 
on  u  proper  plea,  the  jurisdiction  of  the  courts  rendering  them  may 
be  put  in  issue,  but  not  the  merits  of  the  judgments.  In  this  case,  the 
court  concluded  by  saying,  that  '  the  full  faith  any  credit,  required  to  be 
given  in  each  state  to  the  judicial  proceedings  of  other  states,  will  prevent 
the  admission  of  any  evidence  to  contradict  the  facts,  which  show  a  ju- 
risdiction, if  such  appear  on  the  record.'  This  last  remark  we  consider, 
taken  in  connection  with  the  subject-matter,  as  applying  to  all  such 
facts  as  tend  to  show  jurisdiction  of  the  court  over  the  person;  such  as 
that  he  was  arrested  and  gave  bail,  or  was  personally  summoned;  indi- 
cating his  actual  presence  in  the  state  at  the  time  of  the  commencement 
of  the  action,  and  of  course  subject  to  its  jurisdiction,  or  other  facts  of 
the  like  nature.  But  if  the  jurisdiction  was  assumed,  upon  certain  con- 
structive notice,  such  as  the  nominal  attachment  of  property,  with  a  no- 
tice by  order  of  court  published  in  a  gazette,  or  by  summoning  a  trustee, 
or  other  similar  mode,  such  judgment  would  be  no  further  conclusive, 
than  as  it  may  bind  the  property  attached,  or  the  eflfects  in  the  hands 
of  the  trustee  ;  they  being  with  the  reach  of  the  process  of  the  court, 
and  subject  to  its  jurisdiction.  A  record,  merely  reciting  one's  having 
appeared  by  attorney,  was  held  not  to  be  contradicted,  by  a  plea,  alleg- 
ing that  he  never  was  within  the  jurisdiction  of  the  court,  was  never 
served  with  process,  and  never  did  appear.  6  Pick.  246.  It  therefore 
follows  that  the  conclusiveness  of  judgments,  as  to  matters  tending  to 
show  that  court  had  jurisdiction,  does  not  extend  to  such  recitals,  but 
only  to  specific  averments  of  fact,  such  as  an  arrest,  personal  service,  or 
personal  appearance.  But  such  general  recital,  if  evidence  at  all,  is 
prima  facie  only,  may  be  traversed,  and  the  contrary  shown  by  ])roof." 
Gleason  v.  Dodd,  45  Mass.  3.'!5.  See  also  Eastern  Township  Bank  ;•. 
Beebe,  53  Yt.  177;  Moulin  r.  Insurance  Co.,  24  N.  J.  Law,  222. 

1  Hahn  v.  Kelly,  34  Cal.  402  ;  94  Am.  Dec.  742;  Carpentier  r.  City  of 


140  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

But  this  doctrine,  so  far  as  it  applies  to  foreign  judg- 
ments, is  directly  opposed  to  the  decisions  above  referred 
to,  holding  that  want  of  jurisdiction  maybe  proved  by 
other  evidence,  not  only  where  the  record  of  the  court  is 
silent  on  the  subject,  but  where  the  record  affirmatively 
shows  that  the  court  had  jurisdiction.  It  would  be  rather 
a  strange  complication  to  hold  that  proof  can  be  made 
against  an  express  recital  of  jurisdiction  in  the  record,  but 
can  not  be  made  against  a  mere  presumption  in  favor  of 
such  jurisdiction. 

It  is  held  that  where  a  defendant  was  a  resident  of  the 
state  in  which  the  judgment  was  rendered,  at  the  time  of 

Oakland,  30  Cal.  439,  445;  Galpin  v.  Page,  1  Saw.  (U.  S.  C.  C.)  318 ;  Mc- 
Cauley  v.  Fulton,  44  Cal.  355;  Lapham  v.  Briggs,  27  Vt.  26;  Quivey  v. 
Porter,  37  Cal.  462 ;  Vassault  r.  Austin,  36  Cal.  691  ;  Sharp  v.  Brunning8, 
35  Cal.  528,  533;  Sharp  v.  Daugney,  33  Cal.  505,  512. 

In  Hahn  v.  Kelly,  34  Cal.  402 ;  94  Am.  Dec.  742,  the  supreme  court  of 
California  used  this  language  :  "Where  the  judgment  of  a  court  of  su- 
perior jurisdiction  is  offered  in  evidence,  during  the  progress  of  a  trial, 
it  may  be  attacked  by  the  opposite  side  upon  the  ground  that  the  court 
by  which  it  was  rendered  had  no  jurisdiction,  either  of  the  subject- 
matter  or  of  the  person  of  the  defendant,  or  both  ;  for  any  judgment  of 
any  court  is  absolutely  void,  if  it  appear  that  there  was  a  want  of  juris- 
diction in  either  respect.  In  support  of  this  attack,  however,  no  facts 
or  circumstances  can  be  shown,  or  relied  upon,  which  do  not  appear 
upon  the  face  of  what,  under  the  law  as  it  read  at  the  date  of  the  judg- 
ment, constituted  the  record,  or,  to  adopt  the  nomenclature  of  our  code 
of  procedure,  the  judgment  roll ;  for  the  record  of  a  court  of  superior 
jurisdiction  imi^orts  absolute  verity,  and  can  not,  therefore,  be  collater- 
ally impeached  from  without.  In  this  respect  the  rule  may  be  stated 
too  broadly  in  McMinn  v.  Whelan,  27  Cal.  314;  but  it  is  correctly  stated 
in  the  subsequent  case  of  Carpentier  r.  The  City  of  Oakland,  30  Cal.  446. 
Our  language  in  the  former  case  implies  that  a  want  of  jurisdiction  may 
be  shown  aliunde,  but  no  such  question  was  involved  in  that  case,  and 
what  was  said  upon  that  subject  must  be  considered  dictum.  Further- 
more, it  is  a  matter  of  no  consequence  whether  the  jurisdiction  of  the 
court  appears  affirmatively  upon  the  judgment  roll  or  not,  for  if  it  does 
not  it  will  be  conclusively  presumed.  These  are  elementary  principles. 
(Carpentier  v.  City  of  Oakland,  30  Cal.  447;  Forbes  v.  Hyde,  31  Cal. 
342  ;  Colt  V.  Haven,  30  Conn.  198.)  So  the  only  question  which  we  are 
called  upon  to  answer  is:  Does  the  judgment  roll,  in  the  case  of  Horace 
Hawes  v.  William  Carey  Jones,  show  upon  its  face  that  the  court  from 
which  it  comes  did  not  have  jurisdiction  of  the  person  of  the  defend- 
ant Jones?" 


HOW    JURISDICTION    PROVED    AND    DISPROVED.  141 

its  rendition,  be  can  not  acquire  the  right  to  defeat  it  by- 
removing  into  another  state  and  attacking  it  there.^ 

Affain  it  is  held  that  if  the  recitals  of  a  judgment  are 
such  as  to  render  it  conclusive  upon  the  parties  to  it,  in 
the  state, in  which  it  is  rendered,  the  same  faith  and  credit 
must  be  accorded  to  it  in  the  courts  of  another  state.^ 
But  this  again  is  opposed  to  the  doctrine,  that  seems  to  be 
thoroughly  established  by  the  later  cases,  that  the  juris- 
diction of  the  court  over  the  subject-matter,  and  of  the 
person,  is  always  open  to  attack,  in  another  state,  even 
against  the  recitals  in  the  record,  and  that  the  judgment, 
when  sued  upon  in  another  state,  is  only  conclusive  upon 
the  merits  of  the  controversy,  and  not  upon  the  jurisdic- 
tion of  the  court  rendering  the  judgment.  To  hold  that 
if  the  recitals  in  a  record  are  conclusive  in  the  state  where 
the  judgment  is  rendered  it  must  be  given  the  same  force 
in  the  courts  of  another  state,  is  to  remove  all  distinction 
between  domestic  and  foreign  judgments  as  affecting  the 
several  states  of  the  United  States.^ 

A  different  rule  prevails  where  the  judgment  is  rendered 
by  a  court  of  the  state  in  which  the  jurisdiction  is  brought 
in  question.  In  such  cases  the  recitals  are  not  only  con- 
clusive, but  in  the  absence  of  any  showing  in  the  record,  on 
the  subject,  it  will  be  conclusively  presumed  that  the 
court  had  jurisdiction.*  In  other  words,  the  jurisdiction 
of  a  court  of  general  jurisdiction,  of  the  state  in  which 
the  judgment  is  brought  in  question  collaterally,  can  only 
be  attacked  by  matters  appearing  on  the  face  of  the  rec- 
ord.^ But  this  conclusive  presumption  must  be  confined 
to  the  proceedings  of  domestic  courts  of  general  jurisdic- 
tion, and  limited  to  })ersons  within  the  territorial  limits  of 
the  court,  and  to  cases  in  which  the  court  is  exercising  its 

'  Brainard  v.  Fowler,  119  Mass.  2()o. 

'  Lapham  v.  Briggs,  27  Vt.  26;  Wetherill  v.  Stillman,  65  Pa.  St.  105, 
118;  Mastin  v.  Gray,  19  Kan.  458,  466;  27  Am.  Rep.  149. 

^  Commonwealth  v.  Green,  17  Mass.  514,  545. 

*  Ante,  sec.  22  ;  post,  sec.  25. 

*Coit  V.  Haven,  30  Conn.  190;  Hahn  v.  Kelly,  34  Cal.  402;  94  Am. 
Dec.  742 ;  People  v.  Harrison,  84  Cal.  607 ;  24  Pac.  Rep.  311 ;  Lee  r.  Rog- 
ers, 2  Saw.  549,  567  ;  Moore  i'.  Martin,  38  Cal.  428. 


142  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

general  powers  according  to  the  general  course  of  pro- 
ceeding in  such  court.  If  the  court  is  one  of  general 
jurisdiction,  but  the  powers  conferred  are  exercised  in  a 
special  manner,  no  presumption  prevails  in  favor  of  its 
jurisdiction  where  its  record  is  silent  on  the  su,bject,  nor 
will  any  recitals  in  its  record  be  binding.^ 

It  is  held  in  California,  that  where  the  action  is  one  af- 
fecting the  status  of  the  parties,  or  an  action  in  rem.,  the 
the  recitals  in  the  judgment  roll  showing  constructive 
service  are  conclusive,  and  that  papers  or  documents  on 
file  in  the  case,  but  not  parts  of  the  judgment  roll,  can 
not  be  looked  to  or  considered  in  determining  the  ques- 
tion of  jurisdiction.^  This  may  be  so,  as  to  domestic 
judgments,  but  as  respects  the  judgments  of  courts  of 
other  states,  the  authorities  are  strongly  against  it,  as  we 
have  seen.  And  it  would  not  be  true  under  the  later  and 
best  considered  cases,  even  in  case  of  a  domestic  judg- 
ment, if  the  judgment  recovered  were  a  personal  judg- 
ment. So  far  as  its  own  citizens  are  concerned  a  state 
may,  undoubtedly,  provide  how  the  jurisdiction  of  its 
courts  may  be  proved,  and  the  eiiect  of  the  evidence,  as 
has  sometimes  been  done.'  But  it  can  not  do  so  as  affect- 
ing citizens  of  another  state,  not  brought  within  the  juris- 
diction of  its  courts  by  personal  service. 

Of  course,  w4iere  the  attack  upon  a  judgment  is  direct, 
the  recitals  in  the  record  are  never  conclusive.* 

Where  a  court  is  one  of  inferior  or  special  jurisdiction, 
the  facts  necessary  to  prove  its  jurisdiction,  either  of  the 
subject-matter  or  of  the  person,  must  appear  on  the  face 

'  Ante,  sec.  22 ;  post,  sec.  25 ;  Galpin  r.  Page,  18  Wall.  350 ;  Coit  r. 
Haven,  30  Conn.  190;  79  Am.  Dec.  244;  Pennoyer  ?•.  Neff,  95  U.  S.  714, 
729;  D'Arcy  v.  Ketchum,  11  How.  165,  173;  Galpin  v.  Page,  3  Saw.  93, 
102.  See,  on  this  subject,  the  case  of  Cooper  r.  Sunderland,  3  la.  114 
(6(5  Am.  Dec.  52),  in  which  the  earlier  cases  are  cited  and  reviewed. 
See  also  1  Smith's  Lead.  Cases,  5th  ed.,  note,  820,  821,  824,  842. 

2  In  re  Newman,  75  Cal.  213,  219;  16  Pac.  Rep.  887;  Sichler  v.  Look, 
93  Cal.  600 ;  29  Pac.  Pep.  220. 

3  Branson  r.  Caruthers,  49  Cal.  380 ;  Eitel  v.  Foote,  39  Cal.  439. 
*  McKinley  v.  Tuttle,  42  Cal.  570,  577. 


I 


HOW    JURISDICTION    PROVED    AND    DISPROVED,  143 

of"  its  records,  and  can  not  be  proved  in  any  other  way.^ 
And  there  are  cases  holding,  directly,  not  only  that  re- 
citals in  the  record  of  a  domestic  court  of  inferior  or  spe- 
cial jurisdiction  are  not  conclusive,  but  that  they  are  not 
even  prima  facie  evidence  of  such  jurisdiction  f  and  that 
the  recitals  in  the  record  of  a  domestic  court  of  general 
jurisdiction  are  not  conclusive.^ 

Where  the  record  of  a  court  shows  upon  its  face  that  it 
had  no  jurisdiction,  this  is  conclusive.  But  there  is  a 
clear  distinction  between  a  showing  that  the  defendant  in 
an  action  was  not  served  at  all  and  a  showing  of  a  defect- 
ive service.  In  the  latter  case  the  judgment  is  erroneous, 
but  it  is  not  void,  and  can  not  be  collaterally  attacked  on 
that  ground.* 

It  will  be  seen  that  upon  almost  every  question  consid- 
ered in  this  section  the  authorities  are  conflicting.  There 
seems  to  be  no  question  of  jurisprudence  upon  which  the 
courts  have  so  widely  differed  as  upon  the  many  and  im- 
portant questions  growing  out  of  the  jurisdiction  of  courts. 
This  condition  of  the  decided  cases  renders  it  impossible 
to  lay  down  fixed  rules  upon  which  the  student  or  the 
lawyer  can  rely  with  any  degree  of  safety.  The  propo- 
sition stated  may  be  fully  adopted  and  supported  by  the 
authorities  in  one  state  and  wholly  denied  and  repudiated 
in  another,  and  whether  the  rule  relied  upon  can  be  main- 
tained will  sometimes  depend  upon  whether  a  case  is 
pending  in  a  state  or  a  federal  court.  iTot  only  so,  but 
on  many  of  the  questions  the  cases  are  so  evenly  divided, 
apparently,  as  to  render  it  very  much  a  question  of  opin- 
ion as  to  where  the  weight  of  authority  rests.  For  this 
reason,  the  only  safe  course  is  to  look  to  the  latest  case 
that  the  court  before  whom  the  action  is  pending  is  bound 

^  Ante,  sec.  22;  post,  sec.  25;  Frees  v.  Ford,  6  X.  Y.  ITd;  Galpin  v. 
Page,  18  Wall.  350 ;  Pennoyer  v.  NeflF,  95  U.  S.  714,  729. 

^People  r.  The  Warden,  etc.,  100  N.  Y.  20,  20;  2  N.  K.  Rep.  870; 
Adams  v.  Washington,  etc.,  R.  R.  Co.,  10  N.  Y.  328,  332. 

'  People  V.  The  Warden,  etc.,  100  N.  Y.  20,  26;  2  N.  E.  Rep.  870;  Fer- 
guson V.  Crawford,  70  N.  Y.  253;  26  Am.  Rep.  589. 

«  Ballinger  v.  Tarbell,  16  la.  491 ;  85  Am.  Dec.  527. 


144  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

to  follow.  Notwithstanding  this  condition  of  the  author- 
ities, however,  it  is  believed  that  the  following  proposi- 
tions are  supported  by  reason  and  the  weight  of  au- 
thority : 

1.  The  jurisdiction  of  a  court  of  general  jurisdiction, 
whether  domestic  or  foreign,  when  proceeding  within  its 
general  powers,  against  one  situated  within  its  territorial 
jurisdiction,  and  according  to  the  general  course  of  pro- 
ceeding in  such  court  in  acquiring  and  exercising  its 
jurisdiction,  will  be  presumed  and  need  not  appear  on 
the  face  of  its  proceedings. 

2.  This  presumption,  in  case  of  foreign  judgments,  in- 
cluding the  judgments  of  another  state  in  this  country,  is 
not  conclusive  on  collateral  attack,  but  may  be  disproved 
by  evidence  dehors  the  record. 

3.  The  jurisdiction  of  a  court  of  inferior  or  special 
jurisdiction  must  be  proved  by  matters  appearing  on  the 
face  of  its  record,  and  will  not  be  presumed,  and  can  not 
be  proved  in  any  other  way. 

4.  No  presumption  will  be  indulged  in  favor  of  the  pro- 
ceedings of  a  foreign  court  of  general  jurisdiction,  includ- 
ing a  court  of  another  state  in  this  country,  which,  in  the 
given  case,  must  acquire  jurisdiction  in  a  special  manner 
provided  by  statute,  or  where  it  exercises  its  jurisdiction, 
when  acquired,  in  a  special  statutory  manner.  Its  juris- 
diction, under  such  circumstances,  must  be  proved  as  the 
jurisdiction  of  courts  of  wholly  inferior  or  special  jurisdic- 
tion are  required  to  be  proved. 

5.  If  the  record  of  a  court,  whether  of  general  or  inferior 
or  special  jurisdiction,  shows  upon  its  face  that  it  had  not 
jurisdiction,  this  is  conclusive  every-where  and  under  all 
circumstances. 

6.  Where  the  jurisdiction  of  a  court,  no  matter  what  the 
nature  of  its  jurisdiction  may  be,  is  directly  brought  in 
question,  its  authority  to  act  maybe  attacked  and  disproved, 
no  matter  what  may  appear  on  the  face  of  its  records. 

7.  Where  the  jurisdiction  of  a  court,  whether  of  general  or 
inferior  or  special  jurisdiction,  depends  upon  a  fact  which 


HOW    JURISDICTION    PROVED    AND    DISPROVED.  145 

sucli  court  is  required  to  ascertain  and  determine  from  evi- 
dence outside  of  its  records,  its  finding  of  such  fact  is  con- 
clusive as  against  a  collateral  attack,  not  only  in  the  state 
where  the  judgment  is  rendered,  but  in  every  other  state. 

8.  In  case  of  a  domestic  judgment,  the  finding  of  the 
court  that  it  has  jurisdiction,  and  the  recitals  in  its  records 
to  that  effect  are  conclusive,  whether  its  jurisdiction  de- 
pends upon  a  fact  or  facts  to  be  ascertained  and  determined 
or  not. 

9.  The  finding  of  jurisdiction  by  a  court  of  another 
state,  whether  of  general  or  limited  jurisdiction,  where 
jurisdiction  does  not  depend  upon  a  fact  or  facts  to  be  as- 
certained and  determined,  is  prima  facie  evidence,  only,  of 
such  jurisdiction,  and  the  recitals  in  its  records  showing 
that  it  had  jurisdiction,  are  not  conclusive. 

The  fact  is  not  overlooked,  in  this  connection,  that  in 
some  of  the  cases  it  is  firmly  held  that  there  is  no  distinc- 
tion between  a  domestic  judgment  and  a  judgment  of  an- 
other state  as  to  the  effect  and  weight  to  be  given  to  the 
recitals  in  the  record.* 

10.  The  finding  of  its  own  jurisdiction  by  a  court  of 
general  jurisdiction  exercising  special  -statutory  powers,  or 
acquiring  jurisdiction  in  a  special  statutory  way,  and  the 
recitals  in  its  records  to  that  eft'ect,  are  placed  upon  the 
same  footing  as  the  findings  and  recitals  of  courts  of  in- 
ferior or  special  jurisdiction. 

'  See  cases  cited  above  in  this  section,  and  particularly  the  case  of 
Mastin  v.  Gray,  19  Kan.  458,  466 ;  27  Am.  Rep.  149,  where  it  is  said,  after 
a  review  of  the  authorities  :  "  It  is  now  settled  beyond  all  controversy 
that  judgments  from  sister  states,  wherever  they  can  be  used,  are  en- 
titled to  the  same  faith  and  credit  as  domestic  judgments."  But  in  this 
statement  the  supreme  court  of  Kansas  has  undoubtedly  fallen  into  an 
error.  Not  only  is  it  not  settled  beyond  controversy  that  the  judgments 
of  sister  states  stand  upon  the  same  footing  as  domestic  judgments,  and 
must  receive  the  same  faith  and  credit,  but  the  great  weight  of  the  de- 
cided cases,  at  least  of  the  later  cases,  as  we  have  seen,  make  a  very 
Diaterial  distinction  between  them  respecting  this  question  of  jurisdic- 
tion, holding  that  full  faith  and  credit  can  only  be  accorded  to  them  when 
their  jurisdiction  is  established,  and  that  such  jurisdiction  can  not  be 
conclusively  established  by  recitals  in  the  record. 

lo" 


146  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

24.  How  JURISDICTION  MAY  BE  LOST,  TAKEN  AWAY,  OR  SUS- 
PENDED.— A  court  may  be  deprived  of  all  or  part  of  its 
jurisdiction  by  law.  If,  however,  a  court  is  invested  with 
jurisdiction  by  the  constitution,  such  jurisdiction  can  not 
be  taken  away,  changed,  or  modified  by  statute.^  It  can 
only  be  taken  away,  modified,  or  changed  by  a  change  of 
the  constitution.  And,  so  long  as  a  court  is  allowed  to 
exist  and  to  exercise  general  jurisdiction,  there  are  certain 
inherent  powers  that  necessarily  belong  to  every  court  of 
that  class  of  which  it  can  not  be  deprived  by  the  legisla- 
tive department  of  government.^  But  these  inherent  pow- 
ers are  subject  to  regulation  by  legislative  enactment.^ 

A  court  can  not  be  divested  of  its  proper  jurisdiction 
by  agreement  of  the  parties  to  an  action.^ 

As  a  general  rule,  a  court  and  its  jurisdiction  are  crea- 
tures of  statutory  law  and  subject  to  be  taken  away  at  the 
will  of  the  law  making  power.  But  the  jurisdiction  of 
superior  courts  can  not  be  so  taken  away,  except  by  ex- 
press words  or  necessary  implication.^ 

Where  exclusive  jurisdiction  is  vested  in  one  court,  by 
statute,  and  the  same  jurisdiction  is  by  statute  subse- 
quently conferred  upon  another  court  without  making 
such  jurisdiction  conclusive,  the  jurisdiction  of  the  former 
court  is  not  taken  away,  but  is  made  concurrent  with  the 
latter.  And,  where  jurisdiction  is  conferred  upon  a  court 
by  the  constitution,  but  is  not  made  exclusive,  the  same 
jurisdiction  may  be  conferred  upon  another  court,  thus 
making  the  jurisdiction  in  the  two  courts  concurrent.^ 
But  this  can  not  be  done  w'here  the  jurisdiction  vested  in 
the  first  court,  by  the  constitution,  is  exclusive.^ 

To  confer  exclusive  jurisdiction  on  one  court,  deprives 

1  Post,  sec.  29 ;  Wilson  v.  Roach,  4  Cal.  366;  The  People  v.  Nichols,  79 
N.  Y.  582 ;  Landers  v.  Staten  Island  R.  R.  Co.,  53  N.  Y.  450;  Popfinger 
v.  Yutte,  102  N.  Y.  38;  ON.  E.  Rep.  259;  Hutkoff  v.  Demorest,  103  N. 
Y.  377 ;  8  N.  E.  Rep.  899;  State  v.  Butt,  25  Fla.  258;  5  Sou.  Rep.  597. 

'■^  Post,  sec.  27;  Elliott's  App.  Pro.,  sec.  6. 

^  Post,  sec.  27 ;  Fox  v.  Meacham,  6  Neb.  530;  Elliott's  App.  Pro.,  sec.  6. 

*  Muldrow  V.  Norris,  2  Cal.  74 ;  56  Am.  Dec.  313. 

*  12  Am.  &  Eng.  Enc.  of  Law,  p.  303,  note  7 ;  Wells'  Jur.,  sec.  73. 
«  1  Works'  Ind.  Prac.  &  PL,  sec.  G. 


HOW    JURISDICTION    MAY    BE    LOST,  ETC.  147 

all  Other  courts  of  such  jurisdiction,  whether  exclusive  or 
concurrent,  conferred  by  statute.^ 

Sometimes  the  power  of  the  legislature  is  limited  by  the 
constitution,  in  the  creation  of  courts,  to  inferior  courts, 
or  to  courts  inferior  to  a  certain  named  court.  Undep- 
such  a  constitutional  limitation,  only  such  inferior  courts 
can  be  created  and  the  jurisdiction  of  existing  courts  con- 
ferred upon  them.^ 

The  power  of  a  territorial  legislature,  in  the  creation  of 
courts  and  conferring  jurisdiction  upon  them,  is  limited 
by  the  organic  act  ijnder  which  the  territory  was  organ- 
ized.^ 

The  division  of  a  county  by  the  creation  of  a  new 
county,  out  of  a  part  of  the  territory  of  the  old,  does  not 
deprive  the  courts  of  the  old  county  of  jurisdiction  over 
real  estate  in  the  new  county  where  the  jurisdiction  had 
attached  before  the  division.* 

The  jurisdiction  of  a  court  can  not  be  transferred  to 
and  vested  in  any  other  tribunal  or  person,  for  example, 
in  the  judge  of  the  court.^ 

The  repeal  of  a  statute  from  which  a  court  derives 
its  jurisdiction  deprives  it  of  power  to  proceed  in  cases 
pending  before  it  at  the  time  of  such  repeal.^ 

It  is  the  purpose  of  this  section  to  consider  more  par- 
ticularly how  a  court,  vested  with  jurisdiction  by  law, 
may,  after  having  obtained  jurisdiction  in  a  given  case, 
lose  such  jurisdiction  by  acts  of  its  own  or  of  the  parties 
to  the  action.  This  may  be  done  by  some  failure  of  the 
court  to   do  some  act  necessary  to  perpetuate  or  continue 

'  1  Wells'  Jur.,  sec.  74  ;  Whitaker  v.  Daly,  78  la.  31 ;  42  N.  W.  Rep. 
569;  Stubbs  v.  The  State,  39  Tex.  571  ;  Perrott  r.  Pierce,  75  :\Iich.  578; 
42  N.  W.  Rep.  1002;  Green  /■.  Superior  Court,  78  Cal.  556;  21  Pac.  Rep. 
307. 

'  Ex  parte  Lothrop,  118  U.  S.  113;  6  Sup.  ('t.  Rep.  984  ;  Green  r.  Su- 
perior Court,  78  Cal.  556;  21  Pac.  Rep.  307;  ante,  sec.  17. 

^  Perris  r.  Higley,  20  Wall.  375;  Chumasero  v.  Potts,  2  Mon.  242. 

*  Tolman  r.  Smith,  85  Cal.  280 ;  24  Pac.  Rep.  743. 

^  In  re  Cleveland,  51  N.  J.  L.  311 ;  17  Atl.  Rep.  772. 

«  Hunt  V.  Jennings,  5  Blkf.  (Ind.)  195;  33  Am.  Dec.  465;  Stephenson  r. 
Doe,  8  Blkf.  (Ind.)  508;  46  Am.  Dec.  489. 


148  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

its  jurisdiction  over  a  cause,  by  appeal,  writ  of  error, 
change  of  venue,  removal  of  the  cause  to  another  court, 
by  raising  an  issue  not  within  the  jurisdiction  of  the  court, 
in  actions  i7i  rem.,  by  losing  the  custody  of  the  property, 
and  by  exhausting  its  jurisdiction.^ 

a.  By  some  failure  of  the  court  to  act  in  time.  It  is  some- 
times provided  that  courts  of  inferior  jurisdiction  shall 
take  certain  steps  in  a  cause  within  a  limited  time  after 
the  doing  of  some  other  act,  and  the  question  frequently 
arises  whether,,  upon  a  failure  to  act  within  the  time 
specified,  the  court  thereby  loses  jurisdiction  to  proceed 
further  in  the  cause.  If  a  court  of  inferior  jurisdiction  is 
required  to  perform  a  certain  act,  for  example,  to  render 
judgment  within  a  limited  time,  the  performance  of  the 
act,  after  the  time  limited,  is  usually  held  to  be  of  no  ef- 
fect.^ If,  however,  the  cause  has  been  tried  by  jury,  and 
a  verdict  returned,  it  is  held  that  the  entry  of  the  judg- 
ment in  accordance  with  the  verdict  is  a  ministerial  and 
not  a  judicial  act,  and  may  be  done  after  the  time  lim- 
ited.3 

But  on  this  point  the  authorities  are  not  uniform.  In 
some  of  the  cases  the  terms  of  the  statute  are  strictly 
adhered  to,  and  the  failure  to  render  judgment  forthwith 
upon  a  verdict  of  a  jury  has.  been  held  to  deprive  the 
court  of  jurisdiction  to  proceed  further  in  the  action.*  And 
this  has  been  held  to  require  the  court  to  render  the  judg- 
ment on  a  legal  holiday.^ 

In  other  cases  the  statute  is  more   liberally   construed 

1  12  Am.  &  Eng.  Enc.  of  Law,  303. 

^Stephens  v.  Santee,  49  N.  Y.  35  39;  Fox  v.  Meacham,  6  Neb.  530, 
534;  Watson  v.  Davis,  19  Wend.  371 ;  Hall  v.  Tuttle,  (5  Hill  (N.  Y.),  38; 
40  Am.  Dec.  382;  Con  well  v.  Kuykendall,  29  Kan.  707;  Brady  v.  Taber, 
29  Mich.  199;  Dunlap  v.  Robinson,  12  Ohio  St.  530. 

*  Stephens  v.  Santee,  49  N.  Y.  35,  39;  Hall  r.  Tuttle,  6  Hill  (N.  Y.),  38; 
40  Am.  Dec.  382;  Lynch  r  Kelly,  41  Cal.  232;  Montgomery  v.  Superior 
Court,  68  Cal.  411;  9  Pac.  Rep.  720. 

*  McNamara  v.  Spees,  25  Wis.  539  ;  Hull  v.  Mallory,  56  Wis.  355 ;  14  N. 
W.  Rep.  374  ;  Smith  v.  Bahr,  62  Wis.  244;  22  N.  W.  Rep.  438. 

'"  Perkins  v.  Jones,  28  Wis.  243. 


IJOW    JURISDICTION    MAY    BE    LOST,    ETC.  149 

with  reference  to  what  constitutes  immediate  action  on 
the  part  of  the  court.^ 

There  is  a  clear  distinction  between  the  rendition  and 
the  entry  of  a  judgment.  If  the  court  has  actually  ren- 
dered its  judgment  within  the  time  limited  the  same  may 
be  entered  at  a  subsequent  time,  the  entry  of  the  judg- 
ment being  a  ministerial  and  not  a  judicial  act.^ 

To  render  a  judgment  is  to  form  the  same  in  the  mind 
of  the  court  and  publicly  announce  it.  To  enter  the  judg- 
ment is  to  write  it  in  the  proper  record.^ 

Where  an  inferior  court  is  required  by  statute,  upon 
adjournment  of  a  cause,  to  adjourn  the  same  to  a  time  and 
place  certain,  an  adjournment  without  specifying  the  time 
or  place  is  held  to  deprive  the  court  of  jurisdiction.*  And 
the  record  of  the  court  must  show  by  the  proper  entries 
the  time  and  place  to  which  the  case  is  adjourned.^ 

A  second  adjournment,  not  authorized  by  law,  will  de- 
prive the  court  of  jurisdiction.^  And  in  some  of  the  states 
the  failure  of  a  plaintiff  to  appear  within  a  certain  time 
and  prosecute  the  action  operates  as  a  discontinuance  and 
deprives  the  court  of  jurisdiction.'' 

It  has  been  held  that  where,  upon  a  disagreement  of  a 
jury,  a  justice  of  the  peace  is  authorized  to  summon  an- 
other jury  to  appear  at  a  time  fixed,  not  more  than  three 
days  distant,  and  the  justice  issues  such  summons  for  a 
time  beyond  that  provided  for,  the  court  does  not  thereby 
lose  jurisdiction  of  the  subject-matter,  and  that  the  appear- 
ance of  the  parties  at  the  time  fixed  waived  any  question 
as  to  the  jurisdiction  of  the  person.^ 

1  Huff  V.  Babbott,  14  Neb.  150;  15  N.  W.  Rep.  230. 
^  Fish  V.  Emerson,  44  N.  Y.  378;  Hall  (;.  Tuttle,  6  Hill  (N.  Y.),  38 ;  40 
Am.  Dec.  382;  Conwell  v.  Kuykendall,  29  Kan.  707. 
'  Conwell  V.  Kuydendall,  29  Kan.  707,  710. 

*  Crandall  r.  Bacon,  20  Wis.  671 ;  91  Am.  Dec.  451 ;  Freeman  on  Judg., 
sec.  526;  Grace  v.  Mitchell,  31  Wis.  533;  11  Am.  Rep.  613. 

*  Brahmstead  v.  Ward,  44  Wis.  591. 

«  Grace  v.  Mitchell,  31  Wis.  533  ;  11  Am.  Rep.  613. 
'  Brady  v.  Taber,  29  Mich.  199. 

*  Wheeler  &  Wilson  Mfg.  Co.  v.  Donahoe,  49  Ark.  318;  5  S.  W.  Rep. 
342. 


150  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

A  discontinuance  may  result  from  an  agreement,  acqui- 
esced in  by  the  court,  to  suspend  proceedings  with  a  view 
to  submit  the  matter  to  another  tribunal  of  concurrent 
jurisdiction,  without  any  formal  order  of  dismissal.^ 

A  justice  loses  jurisdiction  by  calling  a  case  for  trial  at  a 
different  place  from  that  named  in  the  summons  and  by 
trying  the  case  in  a  place  forbidden  by  law.^ 

b.  By  appeal  or  writ  of  error.  An  appeal  or  writ  of  error 
transfers  jurisdiction  from  the  lower  to  the  appellate  court 
and  deprives  the  former,  during  the  pendency  of  the  ap- 
peal, of  all  power  to  proceed  further  in  the  matter  involved 
in  the  appeal.^  But  it  is  held-that  where  the  appeat  is  in 
tne  nature  of  a  writ  of  error,  for  the  correction  of  errors 
which  may  have  intervened  in  the  trial  of  the  cause  in 
the  court  below,  and  for  an  adjudication  upon  the  question 
whether  the  judgment  appealed  from  should  be  affirmed, 
reversed,  or  modified,  the  appeal  does  not  vacate  or  sus- 
pend the  judgment  appealed  from,  and  the  court  below 
has  jurisdictiou  to  enforce  the  same.* 

In  some  of  the  states  it  is  held  that  an  appeal  suspends 
the  operation  of  a  judgment  for  all  purposes.^  And  it  is 
held  that  the  judgment  appealed  from  can  not  be  used  as 
evidence  between  the  parties.*^ 

A  bond  to  stay  procedings  is  usually  required.  If  no 
such  bond  is  given  the  judgment  may  be  enforced  not- 
withstanding the  appeal.  And  even  where  such  a  bond  is 
given  it  is  generally  held  that  it  merely  suspends  the 
right  to  enforce  the  judgment,  but  leaves  it,  until  annulled 
or  reversed,  binding  upon  the  parties   upon  all   questions 

1  People  V.  Andrews,  57  Super.  Ct.  Rep.  (N.  Y.)  591. 

"^  Newcomb  v.  Town  of  Trempealeau,  24  Wis.  459. 

»  In  re  May,  6  N.  Y.  Sup.  357 ;  53  Hun,  632  ;  Keyser  r.  Farr,  105  U.  S. 
265 ;  Stone  v.  Spillman,  16  Tex.  432 ;  Levi  v.  Karrack,  15  la.  444 ;  1  Black 
on  Judg.,  sec.  243. 

*  Bank  of  North  Am.  v.  Wheeler,  28  Conn.  433 ;  73  Am.  Dec.  683 ; 
Cain  V.  Williams,  16  Nev.  426 ;  Taylor  v.  Shew,  39  Cal.  536;  2  Am.  Rep. 
478;  Freeman  on  Judg.,  sec.  328. 

*  Freeman  on  Judg.,  sec.  328;  McGarrohan  v.  Maxwell,  28  Cal.  91; 
People  V.  Treadwell,  66  Cal.  400. 

^  Woodburv  r.  Bowman,  13  Cal.  635;  Murray  v.  Green,  64  Cal.  363. 


now    JURISDICTIOX    MAY    BE    LOST,    ETC.  151 

directly  decided.^  Therefore,  a  judgment  appealed  from 
may  be  pleaded  in  bar  of  another  action  for  the  same 
€ause.^ 

Where  the  appeal  is  to  a  court  in  which  the  cause  must 
be  tried  de  novo,  and  not  for  the  correction  of  errors,  the 
appeal  does  not  merely  suspend  the  right  to  enforce  the 
judgment.  By  such  an  appeal  the  judgment  of  the  lower 
court  is  vacated  and  set  aside.^ 

Where  an  appeal  can  only  be  taken  upon  an  order  of  the 
court  allowing  the  same,  and  such  order  is  made,  the  ju- 
risdiction is  not  divested  by  making  the  order  of  allow- 
ance ;  and  until  the  steps  necessary  to  perfect  the  appeal 
are  taken  the  case  is  under  the  control  of  the  court,  and 
it  may,  during  the  term,  vacate  the  order  allowing  the  ap- 
peal.* But  where  the  order  of  allowance  is  followed  by 
the  steps  necessary  to  perfect  the  appeal,  the  jurisdiction 
of  the  lower  court  is  at  an  end,  and  the  order  of  allowance 
can  not  be  vacated  by  that  court.'^ 

c.  By  change  of  venue.  Provision  is  usually  made  for 
changing  the  venue  from  one  court  to  another  for  specified 
causes.  When  such  a  change  is  taken,  the  jurisdiction  is 
thereby  taken  from  the  court  first  having  cognizance  of 
the  case  and  vested  in  the  court  to  which  the  case  is  re- 
moved.^ 

The  court  from  which  the  cause  is  removed  has  power 
to  perfect  the  record  of  the  proceedings  before  it,  if  de- 
fective, so  that  the  case  may  be  properly  presented  to  the 
court  to  which  it  is  sent ;  but  it  can  take  no  steps  toward 
the  further  progress  of  the  case  unless  authority  to  do  so 
is  given  by  law.^ 

'  Freeman  on  Judg.,  sec.  328;  Nill  v.  Comparet,  16  Ind.  107;  79  Am. 
Dec.  411 ;  Burton  v.  Burton,  28  Ind.  342;  Sage  i'.  Harpending,  49  Barb. 
1(36. 

^  Harris  v.  Hammond   18  How.  Pr.  123. 

^  Freeman  on  Judg.,  sec.  328 ;  Bank  of  North  America  v.  Wheeler,  28 
Conn.  433  ;  73  Am.  Dec.  683 ;  Cain  v.  Williams,  16  Nev.  426,  430  ;  2  Black 
on  Judg.,  sec.  960. 

*  Goddard  v.  Ordway,  101  U.  S.  745 ;  Keyser  r.  Farr,  105  U.  S.  265. 

'"  Draper  v.  Davis,  102  U.  8.  370 ;  Keyser  v.  Farr,  105  U.  S.  265. 

«  State  V.  Reid,  1  Dev.  &  Bat.  L.  (X.  bar.)  377;  28  Am.  Dec.  572. 


152  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

Under  the  general  rule  that  the  records  of  a  court  are 
subject  to  be  changed  by  it,  during  the  term,  an  order  for 
a  change  of  venue  may  be  changed  by  the  court  at  any 
time  during  the  term,  until  the  change  of  venue  is  per- 
fected by  filing  the  necessary  papers  in  the  court  to  which 
the  case  is  sent.^  This  is  on  the  ground  that  it  is  not  the 
order  for  the  change  that  divests  the  court  of  jurisdiction, 
but  the  transmission  of  the  papers  to  the  court  to  which 
the  change  is  taken. 

Sometimes,  where  the  cause  for  the  change  of  venue 
does  not  affect  the  judge  of  the  court,  authority  is  given 
by  statute  to  make  up  the  issues,  or  take  other  steps  in 
the  case,  not  inconsistent  with  the  rights  of  the  party 
asking  for  the  change;  and,  such  authority  being  given, 
the  court  in  which  the  case  is  pending  may  proceed  with 
the  cause  to  the  extent  authorized,  and  then  make  the 
order  of  removal.' 

It  is  usual  for  the  statute  authorizing  a  change  of  venue 
to  require  the  party  applying  therefor  to  pay  the  costs,  or 
the  costs  of  the  change.  Under  such  a  provision,  the  ju- 
risdiction of  the  court  is  not  divested  either  by  the  filing 
of  the  necessary  aflidavit  or  b}^  the  order  of  removal.  In 
order  to  perfect  the  change,  and  transfer  the  jurisdiction 
from  one  court  to  the  other,  the  costs  must  be  paid,  or,  if 
other  conditions  are  imposed,  they  must  be  complied  with. 
If  not,  the  jurisdiction  remains  where  it  was,  and  the 
court  must  proceed  with  the  cause.^ 

Where  the  statute  authorizes  a  change  of  venue  by 
stipulation,  the  jurisdiction  of  one  court  may  be  taken 
away,  and  the  same  vested  in  the  other,  by  the  agreement 
of  the  parties  ;  and  where  the  question  is  one  of  jurisdic- 
tion of  the  person,  the  court  to  which  the  action   is  sent 

1  People  V.  Zane,  105  111.  662;  Atlantic,  etc.,  Coal  Co.  r.  Maryland  Coal 
Co.,  64  Md.  302;  1  Atl.  Rep.  878. 

*  Works'  Ind.  Prac.  &  PL,  sec.  1263 ;  Dawson  v.  Vaughau,  42  Ind.  395  ; 
Risher  v.  Morgan,  56  Ind.  172. 

3  2  Works'  Ind.  Prac.  &  PL,  sees.  1263,  1264;  Buchanan  v.  Port,  5  Ind. 
264;  Fawcett  v.  The  State,  71  Ind.  590. 


now    JURISDICTION    MAY    BE    LOST,  ETC.  153 

may  be  vested  with  jurisdiction  by  consent,  or  by  waiver, 
resulting  from  an  appearance  without  objection.^ 

d.  By  removal  of  causes.  Provision  is  made  for  the  re- 
moval of  causes  from  the  state  to  the  federal  courts  in 
certain  cases.^  When  the  petition  and  bond  required  by 
the  statute  are  filed,  it  is  the  duty  of  the  state  court  to 
transfer  the  cause  to  the  federal  court.  And  whether  the 
state  court  makes  the  order  of  transfer  or  not,  a  com- 
pliance with  the  statute  divests  it  of  jurisdiction  and  vests 
such  jurisdiction  in  the  federal  court.^ 

e.  By  raising  an  issue  not  within  the  jurisdiction  of  the 
court.  In  most  of  the  states,  provision  is  made  to  the  ef- 
fect that  where  the  title  to  real  estate  is  put  in  issue  before 
a  justice  of  the  peace,  the  cause  shall  be  certified  by  the 
justice  to  the  proper  court  for  further  determination. 
Under  these  statutes,  it  is  uniformly  held  that  whenever 
the  title  to  real  estate  is  put  in  issue  by  the  proper  plead- 
ings, or  is  raised  by  the  evidence  at  the  trial,  whether  dis- 
closed by  the  pleadings  or  not,  the  jurisdiction  of  the 
court  ceases  at  once,  and  any  act  of  the  court,  except  to 
certify  the  case  to  the  higher  court,  is  absolutely  void.* 
If  no  provision  is  made  for  the  transfer  of  the  cause  to 
a  court  having  jurisdiction,  the  case  should  be  dismissed 
upon  the  issue  of  title  being  presented.^ 

The  fact  that  the  title  to  land  comes  incidentally  in 
question  will  not  oust  the  court  of  jurisdiction.  It  must 
be  a  direct  issue  in  the  case.^  And  it  is  not  sufficient  to 
show  that  title  may  become  an  issue  in  the  case.  It  must 
appear,  either  by  the  pleading  or  the  evidence,  that  it  will 

'  Carpenter  v.  Shepardson,  43  Wis.  406 ;  2  Works'  Ind.  Prac.  &  PI.,  sec. 
1263  ;  Bennett  v.  The  State,  3  Ind.  167. 

»  Rev.  Stat.  U.  S.,  sec.  639. 

^  Works'  Rem.  of  Causes,  sec.  8 ;  Dillon's  Rem.  of  Causes,  sec.  75 ; 
Railroad  Co.  r.  Koontz,  104  U.  S.  5;  Carpenter  r.  New  York,  etc.,  R.  R. 
Co.,  11  How.  Pr.  481. 

*  Murry  v.  Biirris,  6  Dak.  170 ;  42  N.  W.  Rep.  25;  Tordsen  v.  Gimmer, 
37  Minn.  211  ;  34  N.  W.  Rep.  20;  Meier  v.  Thiemann.  90  Mo.  433;  2  S. 
W   Rep.  435. 

*  State  r.  Stenner,  50  N.  J.  Law,  59 ;  11  Atl.  Rep.  131. 
®  Wells'  Jur.,  sec.  79,  p.  67. 


154  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

be  necessary  for  the   court   to   determine   the  question  of 
title  in  its  decision.' 

If  a  plaintiff  brings  an  action,  knowing  that  his  demand 
necessarily  involves  a  question  of  title,  his  action  should 
be  dismissed  at  his  cost  and  not  certified  up.' 

f.  In  actions  in  rem.^  by  losing  the  custody  of  the  -property 
or  failing  to  give  notice.  As  the  jurisdiction  of  the  court 
in  actions  in  rem.  is  acquired  by  a  levy  upon  the  property, 
or  some  equivalent  act  by  which  the  property  is  taken 
into  its  custody,^  so  the  court  loses  its  jurisdiction  by  sur- 
rendering, or  otherwise  losing  the  custody  of  the  proji- 
erty.3 

It  has  been  shown  elsewhere  that  in  actions  in  rem.  it  is 
necessary,  in  order  to  render  the  jurisdiction  of  the  court 
effectual,  that  notice  be  given  to  the  parties  interested,  or 
to  the  public  generally,  as  the  case  may  require.*  If,  there- 
fore, the  court  obtains  jurisdiction  of  the  property  by 
seizing  and  taking  it  into  its  custody,  but  notice  is  not 
given  within  the  time  required  by  law,  its  jurisdiction  is 
lost." 

g.  Suspended  between  terms  of  court  and  lohen  judges  not 
present.  It  has  been  shown  that  a  court  can  only  act  as 
such  when  regularly  convened  at  the  time  and  in  the 
place  provided  by  law.^  It  follows,  necessarily,  that  dur- 
ing the  intervals  between  terms  of  court  the  jurisdiction 
of  the  court  is  suspended,  and  no  judicial  act,  that  can 
only  be  done  by  the  court,  can  be  performed  by  the  judge 
or  judges  composing  the  court  when  not  properly  assem- 
bled as  such.'^  And  if,  during  the  term,-  the  number  of 
judges  necessary  to  make  a  duly  organized  court  are  not 
present,  the  functions  of  the  court  are  suspended  until  the 
requisite  number  appears.  But  it  has  been  held  that  the 
calling  of  one  of  the  members  of  the  court  from  the 
bench  to  the  witness  stand,  in  the  case  on  trial  before 
the  court,  thus  leaving  less  than  the   requisite   number, 

'  Ohse  r.  Bruss,  45  Wis.  442. 

^  Ante,  sec.  14.  '  Waples'  Attach.  312.  *  Ante,  sec.  14. 

*  Miller  v.  Babcock,  29  Mich.  526;  Waples'  Pro.  In  Rem,  sec.  (i4,  p.  88. 

*  Ante,  sees.  1,  19.  "  Ante,  sec.  19. 


PRESUMPTIONS    IX    FAVOR    OF    JURISDICTION.  155 

does  not  deprive  the  court  of  jurisdiction.^  And  a  failure 
of  the  court  to  convene  for  one  day,  during  the  term,  al- 
though the  court  has  regularly  adjourned  to  that  day,  does 
not  deprive  it  of  jurisdiction  for  the  term  where  it  meets  the 
following  day  and  proceeds  with  the  business  of  the  court.^ 
It  is  otherwise  when  the  court  fails  to  convene  at  the  be-' 
ginning  of  the  term.^ 

h.  By  exhausting  its  jurisdiction.  Cases  occur  in  which 
a  court  may,  in  the  proper  exercise  of  its  jurisdiction,  ren- 
der one  of  two  alternative  judgments.  Where  this  power 
exists,  the  rendition  of  one  of  the  alternative  judgments, 
for  example,  where  one  of  two  penalties  may  be  inflicted 
for  the  commission  of  a  crime,  exhausts  the  jurisdiction 
of  the  court,  and  its  power  is  at  an  end.  It  can  not  sub- 
sequently impose  the  other  alternative  penalty  upon  the 
party  accused.* 

As  a  general  rule,  the  jurisdiction  of  a  court,  once  prop- 
erly acquired,  will  not  be  divested  by  any  act  of  the  par- 
ties, or  change  of  facts,  or  the  condition  of  the  parties,  or 
the  subject-matter  in  the  particular  case.^  The  question 
of  jurisdiction  relates  to  the  time  the  action  is  brought, 
except  where  such  jurisdiction  is  claimed  to  have- been 
terminated  in  some  mode  recognized  by  law.  Therefore, 
if  the  residence  of  the  parties  is  such,  at  the  time  the  suit 
is  brought,  as  to  give  a  federal  court  jurisdiction,  such 
jurisdiction  will  not  be  ousted  by  a  subsequent  change  of 
residence  of  any  of  the  parties.® 

25.  Presumptions  in  favor  of  jurisdiction. — The  gen- 
eral rule  in  respect  of  presumptions  affecting  jurisdiction 
is  that  every  thing  will  be  presumed  to  be  within  the  ju- 
risdiction  of  courts  of  general  and  superior  jurisdiction, 

*  People  V.  Dohring,  59  N.  Y.  374 ;  17  Am.  Rep.  349. 

»  People  V.  Sullivan,  115  N.  Y.  185;  21  N.  E.  Rep.  1039. 

^  Ante,  sees.  1,  19. 

"*  Lange  v.  Benedict,  48  How.  Pr.  465 ;  Ex  parte  Lange,  85  U.  8.  163. 

*  Wells'  Jur.,  sec.  79. 

*  Mollan  V.  Torrance,  9  Wheat.  537. 


156  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

and  nothing  will  be  presumed  to  be  within  the  jurisdiction 
of  courts  of  inferior  or  special  jurisdiction.^ 

The  effort  has  been  made  to  distinguish  these  different 
classes  of  courts.^  The  means  by  which  courts  of  special 
or  inferior  powers  may  obtain  jurisdiction  in  a  particular 
case  has  also  received  attention.^  It  must  be  borne  in 
mind  that  there  is  a  very  material  distinction  between  a 
court  of  inferior  jurisdiction  and  one  exercising  special 
jurisdiction.  Of  course,  a  court  having  special  jurisdiction 
only,  is  a  court  of  inferior  jurisdiction.  But  a  court  of 
general  and  superior  jurisdiction  may  be  invested  with 
special  powers,  and,  so  far  as  it  exercises  such  special  ju- 
risdiction, it  is  a  court  of  inferior  powers,  and  its  acts  must 
be  tested  and  proved  accordingly.* 

Jurisdiction,  whether  exercised  by  a  court  of  general  or 
of  inferior  jurisdiction,  may  be  special  in  its  nature  be- 
cause such  jurisdiction  must  be  obtained  in  a  special  way, 
or  because  it  must,  after  being  obtained,  be  exercised  in  a 
special  mode.^  Therefore,  the  general  rule  that  every 
thing  will  be  presumed  to  be  within  the  jurisdiction  of  a 
court  of  general  jurisdiction  must  be  limited  to  such  things 
as  fall  within  the  general  scope  of  its  powers.®  And, 
where  exclusive  jurisdiction  of  a  subject-matter  is  given 
to  a  class  of  tribunals,  it  will  not  be  presumed  that  a  court, 
not  belonging  to  such  class,  has  jurisdiction  over  such 
subject-matter,  although  the  court  is  one  of  general  juris- 
tion.''  But  this  can  only  be  so  where  it  affirmatively  ap- 
pears from  the  record  that  jurisdiction  of  the  general  sub- 

'  Galpin  v.  Page,  18  Wall.  350;  Freeman  on  Judg.,  sees.  124,  517;  12 
Am.  &  Eug.  Enc.  of  Law,  271 ;  Harvey  v.  Tyler,  2  Wall.  328 .  Elliott's 
App.  Pro.,  sec.  715;  Ex  parte  Kearny,  55  Cal.  212;  Wells'  Jur.,  sec.  30; 
Mallett  V.  Uncle  Sam,  etc.,  Min.  Co.,  1  Nev.  188;  90  Am.  Dec.  484;  Schad 
V.  Sharp,  95  Mo.  573 ;  8  S.  W.  Eep.  549 ;  Coit  v.  Haven,  30  Conn.  190 ;  79 
Am.  Dec.  244 ;  City  of  St.  Louis  v.  Lanigan,  97  Mo.  175 ;  10  S.  W.  Rep.  475. 

» Ante,  sees.  7,  20,  22,  23.  »  Ante,  sec.  20. 

*  Galpin  v.  Page,  18  Wall.  350;  Cooper  v.  Sunderland,  3  la.  114;  66 
Am.  Dec.  52.  But  see  on  this  point  Ante,  sec.  20,  and  Sheldon  v.  Newton, 
3  Ohio  St.  494,  499. 

*  Ante,  sees.  7,  20,  22,  23. 

«  Ante,  sees.  7,  22,  23 ;  Galpin  v.  Page,  18  Wall.  350. 
'  Elliott's  App.  Pro.,  sec.  715. 


PRESUMPTIONS    IX    FAVOR    OF    JURISDICTION.  157 

ject-matter  is  not  in  the  court  before  whom  the  action  is 
pending,  or  is  exclusively  in  another  court,  or  class  of 
courts,  to  which  it  does  not  belong.  So  it  is  really  a  case 
in  which  it  appears  from  the  record  that  the  court  has  not 
jurisdiction,  and  brings  the  case  within  the  other  rule  tliat 
no  presumption  can  prevail  against  the  record.  And  this 
rule  applies  only  to  the  general  subject-matter,  and  not  to 
the  question  of  jurisdiction  in  a  particular  action.  A  want 
of  jurisdiction  in  a  particular  case  must  be  shown  by  the 
proper  plea  or  answer.^ 

"  It  is  a  necessary  presumption  that  the  court  of  general 
jurisdiction  can  act  upon  the  given  case  when  nothing  ap- 
pears to  the  contrary;  hence  has  arisen  the  rule  that  the 
party  claiming  an  exemption  from  its  process  must  set  out 
the  reasons  by  a  special  plea  in  abatement,  and  show  that 
some  inferior  court  of  law  or  equity  has  the  exclusive  cog- 
nizance of  the  case,  otherwise  the  superior  court  must  pro- 
ceed in  virtue  of  its  general  jurisdiction."- 

If  a  court  of  general  jurisdiction  must,  in  the  given 
case,  acquire  or  exercise  jurisdiction,  not  according  to  the 
general  course  of  proceeding  in  such  court,  but  in  a  special 
mode  provided  by  statute,  in  that  particular  case,  or  in 
the  class  of  cases  to  which  it  belongs,  the  jurisdiction  is 
special  in  its  nature,  and  the  court  a  court  of  inferior  ju- 
risdiction with  respect  to  that  case. 

The  rule  has  been  laid  down  in  general  terms  that  "  when 
a  superior  court  exercises  special  statutory  powers  in  ac- 
cordance with  the  usual  form  of  common  law  or  chancery 
proceedings,  tlie  usual  presumptions  as  to  its  jurisdiction 
are  entertained,  but  when  those  powers  are  to  be  exercised 
in  a  special  or  summary  manner,  the  record  must  show 
that  the  court  had  jurisdiction,  and  that  it  proceeded  in 
the  way  provided  by  the  statute."^ 

The  distinction  is  often  made  to  turn  upon  the  question 

'  state  of  Rhode  Island  r.  State  of  Massachusetts.  12  Pet.  G57,  718;  Elli- 
ott's App.  Pro.,  sec.  715. 

•^  State  of  Rhode  Island  v.  State  of  :\Iassachusetts,  12  Pet.  657,  71 S. 

^  12  Am.  &  Eng.  Enc.  of  Law,  276;  Harvey  *•.  Tyler,  2  Wal.  .328;  ante, 
sec.  22. 


158  GENERAL    PRIxXCIPLES    AFFECTING    JURISDICTION. 

whether  the  court,  in  the  given  case,  proceeds  according  to 
the  course  of  the  common  law,  or  in  accordance  with  some 
mode  prescribed  by  statute.*  But  this  distinction  is  calcu- 
lated to  mislead.  In  a  certain  sense  none  of  the  courts  of 
many  of  the  states  in  this  country  proceed  according  to 
the  course  of  the  common  law.  The  mode  of  acquiring 
and  exercising  jurisdiction  is  almost  always,  and  entirely, 
prescribed  by  statute,  and  the  extent  of  the  jurisdiction  of 
every  court  is  limited,  to  a  certain  extent,  either  by  the 
constitution  or  statutes  of  the  state,  or  of  the  United 
States.^  Therefore,  every  such  court  acquires  and  exer- 
cises its  jurisdiction  according  to  statutory  or  constitutional 
provisions  and  not  according  to  the  course  of  the  com- 
mon law. 

^  Ante,  sees.  7,  22,  23 ;  Galpin  v.  Page,  18  Wal.  350;  Freeman  on  Judg., 
sec.  127. 

^  Ante,  sees.  7,  20,  22,  23 ;  Harvey  r.  Tyler,  2  Wal.  328 ;  Hahn  v.  Kelly, 
34  Cal.  391,  409;  94  Am.  Dee.  742. 

In  Harvey  v.  Tyler,  supra,  it  is  said  :  "The  jurisdiction  which  is  now 
exercised  by  the  common  law  courts  in  this  country,  is,  in  a  very  large 
proportion,  dependent  upon  special  statutes  conferring  it.  JMany  of 
these  statutes  create,  for  the  first  time,  the  rights  which  the  court  is 
called  upon  to  enforce,  and  many  of  them  prescribe  with  minuteness 
the  mode  in  which  those  rights  are  to  be  pursued  in  the  courts.  Many 
of  the  powers  thus  granted  to  the  court  are  not  only  at  variance  with 
the  common  law,  but  often  in  derogation  of  that  law.  In  all  cases, 
where  the  new  powers  thus  conferred,  are  to  be  brought  into  action  in 
the  usual  form  of  common  law  or  chancery  proceedings,  we  apprehend 
there  can  be  little  doubt  that  the  same  presumptions  as  to  the  jurisdic- 
tion of  the  court  and  the  conclusiveness  of  its  action  will  be  made,  as  in 
cases  falling  more  strictly  within  the  usual  powers  of  the  court.  On  the 
other  hand,  powers  may  be  conferred  on  the  court  and  duties  required 
of  it,  to  be  exercised  in  a  special  and  often  summary  manner,  in  which 
the  order  or  judgment  of  the  court  can  only  be  supported  by  a  record 
which  shows  that  it  had  jurisdiction  of  the  case.  The  line  between 
these  two  classes  of  cases  may  not  be  very  well  defined  nor  easily  ascer- 
tained at  all  times.  There  is,  however,  one  principle  underlying  all  these 
various  classes  of  cases,  which  may  be  relied  on  to  carry  us  through 
them  all  when  we  can  be  sure  of  its  application.  It  is,  that  whenever 
it  appears  that  a  court  possessing  judicial  powers  has  rightfully  ob- 
tained jurisdiction  of  a  cause,  all  its  subsequent  proceedings  are  valid, 
however  erroneous  they  may  be,  until  they  are  reversed  on  error  or  set 
aside  by  some  direct  proceedings  for  that  purpose.  The  only  diflSculty 
in  applying  the  rule,  is  to  ascertain  the  question  of  jurisdiction." 


PRESUMPTIONS  IN  FAVOR  OF  JURISDICTION.  159 

A  statutory  mode  of  acquiring  jurisdiction,  by  a  court 
of  general  jurisdiction,  which  is  applicable  to  all  cases 
cognizable  in  such  court,  and  to  all  persons  who  may  be 
brought  before  it,  can  not  be  regarded  as  a  special  mode 
of  acquiring  jurisdiction.  This  question  has  arisen  most^ 
frequently  where  constructive  service  by  publication,  or  in 
some  other  way,  is  provided  for  by  statute.  It  has  been 
held  by  the  supreme  court  of  the  United  States  that  no 
presumption  will  be  entertained  in  favor  of  the  jurisdiction 
of  a  court  over  the  person  of  a  non-resident  defendant  by 
constructive  notice  provided  by  statute.^  And  tliis  doctrine 
is  supported  by  other  cases.^ 

But  it  is  said  in  other  cases  that  there  should  be  no  dif- 
ference, with  respect  to  the  presumption  in  favor  of  the  ju- 
risdiction of  a  court  of  general  jurisdiction,  whether  such 
jurisdiction  must,  under  the  statute,  be  acquired  by  publica- 
tion or  by  personal  service  of  summons.^     And  why  should 

1  Galpin  v.  Page,  18  Wal.  350. 

^  Swift  V.  Meyers,  37  Fed.  Rep.  37 ;  Furgeson  v.  Jones,  17  Ore.  204 ;  20 
Pac.  Rep.  842 ;  Moulin  r.  Insurance  Co.,  24  N.  J.  Law,  222. 

^  "There  has  been  much  difference  of  opinion  in  courts,  for  whose  de- 
cisions we  have  the  highest  respect,  as  to  whether  the  same  presump- 
tions will  be  indulged  in  favor  of  jurisdiction  where  reliance  is  placed 
on  citation  by  publication  and  seizure  of  property  as  will  be  where  per- 
sonal service,  made  within  the  territory  over  which  the  court  has  juris- 
diction, is  relied  upon.  It  seems  to  us  that  there  can  be  no  substantial 
reason  for  holding,  in  the  one  case,  that  it  must  be  affirmatively  shown 
that  such  process  as  the  law  declares  sufficient  was  properly  executed, 
while,  in  the  other,  this  will  be  presumed  if  the  record  does  not  show 
to  the  contrary.  Whether  the  jurisdiction  of  a  court  be  general  or 
special,  can  not  be  made  to  depend  upon  the  character  of  the  process 
through  which  it  acquires  power  over  the  person  or  thing  to  be  affected 
by  its  final  adjudication.  The  constitution  confers  jurisdiction,  but  the 
legislature  prescribes  the  process  through  which  persons  and  things  may 
be  brought  within  its  reach,  and  made  subject  to  its  exercise.  It  seems 
to  us  illogical  to  hold,  when  the  averments  of  the  pleadings  show  that 
personal  service  might  have  been  made  within  the  jurisdiction,  that 
this  will  be  presumed  to  have  been  done  if  the  record  be  silent,  or  do 
not  show  to  the  contrary,  when  the  court  has  exercised,  or  assumed  to 
exercise,  the  power  to  make  a  final  jadgment,  but  to  hold  that  the  same 
presumption  will  not  be  indulged  as  to  proper  citation  by  publication, 
or  as  to  the  seizure  of  property,  when  the  pleadings  show  that  these 
things  were  necessary  to  be  done,  and  could  have  been  done,  before  th(^ 


IGO  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

there  be?  If  such  a  mode  of  acquiring  jurisdiction  can 
prope^'ly  be  prescribed  by  statute,  then  it  would  seem  to  be 
reasonable  that  it  should  be  presumed,  as  in  all  other  cases, 
that  the  necessary  steps  to  acquire  such  jurisdiction  had 
been  taken.^  Whether,  if  such  notice  were  actually  proved 
by  the  record  to  have  been  given,  it  would  vest  the  court 
with  jurisdiction  over  the  person  of  a  non-resident  is  quite 
another  question.  It  seems  to  be  thoroughly  settled  that 
it  would  not.^  But  this  has  nothing  to  do  with  the  ques- 
tion of  presumption  in  favor  of  jurisdiction.  Suppose  this 
mode  of  acquiring  jurisdiction  over  the  person  of  its  own 
citizens  were  provided  by  statute  in  any  of  the  states  in 
all  cases.  It  would  undoubtedly  be  a  special  mode  of  ac- 
quiring jurisdiction  in  the  sense  that  it  would  not  be  ac- 
cording to  the  course  of  the  common  law.  And  yet,  if 
such  a  mode  of  acquiring  jurisdiction  by  courts  of  general 
jurisdiction  were  provided,  no  reason  is  apparent  for  hold- 
ing that  no  presumption  would  be  indulged  in  favor  of  the 
jurisdiction  of  the  court  under  such  conditions.  But,  as 
has  been  said,  some  of  the  cases,  in  holding  that  no  pre- 
sumption will  be  indulged  in  favor  of  the  jurisdiction  of  a 
court  where  such  jurisdiction  must  be  obtained  by  publi- 
cation, place  it  upon  the  ground  that  it  is  a  special  mode 
of  acquiring  jurisdiction  and  not  according  to  the  course 
of  the  common  law.^ 

court  assumed  the  power  to  render  a  final  judgment.  In  either  case, 
the  presumption  that  the  court  did  not  render  a  final  judgment  until  it 
was  authorized  to  do  so,  arises  from  the  fact  that  to  have  done  otherwise 
would  have  been  a  breach  of  duty,  which  is  never  presumed  from  the 
doing  of  an  act  that  may  have  been  legal."  Stuart  v.  Anderson,  70  Tex. 
588;  8  S.  W.  Rep.  296.  See,  also,  In  re  Newman,  75  Cal.  213;  16  Pac. 
Rep.  887 ;  Sichler  v.  Look,  93  Cal.  600;  29  Pac.  Rep.  220 ;  Hahn  v.  Kelly, 
34  Cal.  391,  408;  94  Am.  Dec.  742;  Cooper  r.  vSunderland,  3  la.  114;  66 
Am.  Dec.  52 ;  City  of  St.  Louis  v.  Lanigan,  97  Mo.  175 ;  10  S.  W.  Rep.  475. 

1  Applegate  v.  Lexington  &  Carter  Co.  M.  Co.,  117  U.  S.  255;  6  Sup. 
Ct.  Rep.  742,  747. 

^  Ante,  sec.  15 ;  Pennoyer  v.  Nefi",  95  U.  S.  714 ;  Galpin  v.  Page,  18  Wall. 
350;  Belcher  r.  Chambers,  53  Cal.  635;  In  re  Newman,  75  Cal.  213;  16 
Pac.  Rep.  887 ;  Swift  v.  Meyers,  37  Fed.  Rep.  37 ;  Kane  v.  Cook,  8  Cal. 
449. 

'  "  The  presumptions  indulged  in  support  of  the  judgment  of  superior 


PRESUMPTIONS    IN    FAVOR    OF    JURISDICTION.  161 

No  doubt  this  distinction  is  maintained  by  the  highest 
authority,  but,  if  it  extends  so  far  as  to  hold  that  when- 
ever a  mode  of  acquiring  jurisdiction,"  other  than  that 
known  to  the  common  law,  is  provided  by  statute,  the 
presumption  in  favor  of  the  jurisdiction  of  the  court  shall 
cease,  for  that  reason,  the  distinction  should  be  abolished. 
There  is  no  reason  why  a  state  may  not  substitute  a  mode 
of  notifying  parties  of  the  pendency  of  actions  different 
from  that  recognized  by  the  common  law,  and,  if  it  does, 
no  good  reason  is  apparent  for  making  any  distinction  as 
to  the  presumption  that  shall  be  indulged  in  favor  of  the 
jurisdiction  based  solely  upon  the  difference  in  the  mode 
of  acquiring  such  jurisdiction. 

This  doctrine,  so  broadly  laid  down  by  the  Supreme 
Court  of  the  United  States,  is  very  materially  modified  by 
other  decisions  of  the  same  court. ^ 

courts  of  general  jurisdiction  are  also  limited  to  jurisdiction  over  per- 
sons within  their  territorial  limits,  persons  who  can  be  reached  by  their 
process,  and  also  over  proceedings  which  are  in  accordance  uith  the  course  of 
the  common  law.     .     .     . 

"But  it  is  said  that  the  court  exercises  the  same  functions  and  the 
same  power  whether  the  service  be  made  upon  the  defendant  personally, 
or  by  publication,  and  that  therefore  the  same  presump;ion  of  jurisdic- 
tion should  attend  the  judgment  of  the  court  in  the  one  case  as  in  the 
other.  This  reasoning  tvonld  abolish  the  distinctions  in  the  presumptions  of 
lau;  when  applied  to  the  proceedings  of  a  court  of  general  jurisdiction  acting 
within  the  scope  of  its  general  powers,  and  when  applied  to  its  proceedings  had 
under  special  statutory  authority.  And,  indeed,  it  is  contended  that  there 
is  no  substantial  ground  for  any  distinction  in  such  cases.  The  distinc- 
tion, nevertheless,  has  long  been  made  by  courts  of  the  highest  charac- 
ter, both  in  this  country  and  in  England,  and  we  had  supposed  that  its 
exstence  was  not  open  to  discussion."     Galpin  v.  Page,  18  Wall.  350. 

»  Harvey  v.  Tyler,  2  Wall.  328 ;  Hall  v.  Law,  102  U.  S.  461  ;  Vorhees  v. 
Jackson,  10  Pet.  449  ;  Applegate  r.  Lexington  &  Carter  Co.  Mining  Co., 
117  U.  S.  255  ;  6  Sup.  Ct.  Pvep.  742,  749. 

In  Applegate  v.  Lexington  &  Carter  Co.  Mining  Co.,  supra,  the  court, 
after  holding  that  where  publication  was  ordered  by  the  court  it  would 
be  presumed  that  publication  was  made  according  to  such  order,  stated 
the  rule  and  distinguished  the  case  of  Galpin  v.  Page,  as  follows:  ''  The 
result  of  the  authorities  and  what  we  decide  is  that  where  a  court  of 
general  jurisdiction  is  authorized  in  a  proceeding,  either  statutory  or  at 
law  or  in  equity,  to  bring  in,  by  publication  or  other  substituted  serv- 
11 


162  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

And  even  as  thus  modified  the  doctrine  has  not  been 
generally  received  as  the  correct  rule  on  the  subject,  as 
appears  from  the' authorities  above  cited. 

The  presumption  of*  the  jurisdiction  of  a  domestic 
court  includes  the  presumption,  where  the  record  is  silent 
on  the  subject,  that  a  defendant  has  been  duly  served 
with  process,  where  the  matter  comes  collaterally  in  ques- 
tion.^ And  the  rule  is  applicable  although  the  defendant 
is  an  infant.^     But  not  on  appeal.^ 

The  United  States  courts,  although  courts  of  limited, 
are  not  courts  of  inferior  or  special  jurisdiction,  and  their 
power  to  act  will  be  presumed  in  case  of  a  collateral  at- 
tack.* But  such  courts  possess  no  powers,  except  such  as 
the  constitution  and  acts  of  congress  concur  in  conferring 
upon  them,  and  in  ease  of  a  direct  attack  their  jurisdic- 
tion must  affirmatively  appear.^ 

ice,  non-resident  defendants  interested  in  or  having  a  lien  upon  prop- 
erty lying  within  its  territorial  jurisdiction,  but  is  not  required  to  place 
the  proof  of  service  upon  the  record,  and  the  court  orders  such  sub- 
stituted service,  it  will  be  presumed,  in  favor  of  the  jurisdiction,  that 
service  was  made  as  ordered,  although  no  evidence  thereof  appears  of 
record,  and  the  judgment  of  the  court,  so  far  as  it  affects  such  property, 
will  be  valid.  The  case  of  Galpin  v.  Page,  18  Wall.  350,  cited  by  counsel 
for  defendant,  is  not  in  conflict  with  this  proposition.  The  judgment 
set  up  on  one  side  and  the  tax  on  the  other  in  that  case  was  rendered 
on  service  by  publication.  The  law  permitted  service  to  be  made  by 
publication  only  where  certain  facts  were  made  to  appear  to  the  satis- 
faction of  the  court,  and  the  court  by  a  precedent  order  which  must 
necessarily  appear  of  record,  authorized  service  to  be  made  by  publica- 
tion. But  the  record  showed  no  such  order,  and  the  publication,  there- 
fore, was  the  unauthorized  act  of  the  party,  and  appeared  affirmatively 
to  be  invalid  and  inefi"ectual." 

*  Dwiggins  ?'.  Cook,  71  Ind.  579;  Crane  v.  Kimmer,  77  Ind.  215,  219; 
Anderson  v.  Gray,  134  111.  550 ;  25  N.  E.  Rep.  843 ;  State  v.  Ennis,  74 
Ind.  17;  Mahoney  v.  Middleton,  41  Cal.  41,  50. 

^  Crane  v.  Kimmer,  77  Ind.  215,  219. 
^  Carver  v.  Carver,  64  Ind.  194. 

*  Ante,  sees.  7,  20,  22,  23 ;  McCormick  v.  Sullivant,  10  Wheat.  192 ;  Pierre 
r.  St.  Paul  &  N.  P.  R.  Co.,  37  Minn.  314;  34  N.  W.  Rep.  38;  Ex  parte 
Cuddy,  131  U.  S.  280 ;  9  Sup.  Ct.  Rep.  703. 

^  Ayite,  sees.  7,  22  ;  United  States  v.  Southern  Pac.  R.  Co.,  49  Fed.  Rep. 
297,  300. 

It  is  broadly  stated,  in  this  case,  that  the  legal  presumption  is  that 


PKESUMPTIONS    IN    FAVOR    OF    JURISDICTION.  163 

A  very  clear  distinction  has  been  made  between  domestic 
and  foreign  judgments  as  to  the  binding  effect  of  the  pre- 
sumptions in  favor  of  jurisdiction,  the  weight  of  author- 
ity being  to  the  effect  that  in  case  of  a  collateral  attack 
upon  a  domestic  judgment  the  presumption  is  conclusive-^ 
while  in  case  of  a  foreign  judgment  the  presumption  is 
not  conclusive,  but  may  be  disproved  by  evidence  dehors 
the  record.^  The  presumption  in  case  of  a  domestic  judg- 
ment is  that  all  of  the  facts  necessary  to  give  the  court 
jurisdiction  of  the  subject-matter  and  of  the  person 
existed.^ 

Presumptions  in  favor  of  jurisdiction  can  be  indulged 
only  when  the  record  is  silent.^  If  the  record  shows  a 
want  of  jurisdiction  no  presumption  will  aid  the  defect.* 
And  where  the  record  shows  that  jurisdiction  was  at- 
tempted to  be  acquired  in  a  certain  way,  or  that  a  certain 
thing  was  done  to  obtain  jurisdiction,  there  can  be  no 
presumption  that  jurisdiction  was  obtained  in  a  different 
way  or  that  something  else  was  done.^ 

Where  it  is  recited  in  the  record  that  a  defendant  was 
duly  served  with  process,  but  the  sheriff''s  return  shows 
that  a  part  only  of  what  was  necessary  to  constitute  due 
service  was  done,  but  does  not  show  whether  other  required 

every  cause  is  without  the  jurisdiction  of  the  circuit  court  of  the  United 
States  unless  the  contrary  affirmatively  appears.  But  in  view  of  the 
earlier  cases  on  the  subject  the  learned  justice  must  be  understood  as 
speaking  with  reference  to  a  direct  attack,  which  was  the  question  be- 
fore the  court. 

'  Ante,  sees.  22,  23 ;  Crim  v.  Kessing,  89  Cal.  478,  48.3 ;  26  Pac.  Rep.  1074 ; 
Rape  V.  Heaton,  9  Wis.  327 ;  76  Am.  Dec.  269 ;  Crane  v.  Kimmer,  77 
Ind.  215,  219. 

^  Ex  parte  Cuddy,  131  U.  S.  280;  9  Sup.  Ct.  Rep.  703;  Nichols  v. 
State,  127  Ind.  406  ;  26  N.  E.  Rep.  839,  841 ;  City  of  St.  Louis  v.  Lanigan, 
97  Mo.  175,  10  S.  W.  Rep.  475. 

^  Freeman  on  Judg.,  sees.  125,  132;  Ex  parte  Ah  Men,  77  Cal.  198;  19 
Pac.  Rep.  380  ;  Hahn  v.  Kelly,  34  Cal.  391,  405  ;  94  Am.  Dec.  742  ;  Crane 
V.  Kimmer,  77  Ind.  215  ;  Settlemier  v.  Sullivan,  97  U.  S.  444. 

*  Hahn  v.  Kelly,  34  Cal.  391,  402,  405 ;  94  Am.  Dec.  742. 

^  Freeman  on  Judg.,  sec.  125 ;  Hahn  v.  Kelly,  34  Cal.  391,  405  ;  94  Am. 
Dec.  742  ;  Settlemier  r.  Sullivan,  97  U.  S.  444,  447  ;  Barber  v.  Morris,  37 
Minn.  194;  33  N.  W.  Rep.  559. 


164  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

acts  were  or  were  not  done,  it  has  been  held  that  the  re- 
cital in  the  record,  although  not  contradictory  of  the  offi- 
cer's return,  can  not  be  held  to  add  thereto,  but  must  be 
held  to  be  a  statement  that  the  acts  shown  by  the  return 
to  have  been  done  constituted  due  service,  and  that  the 
return  must  control  the  recital.^ 

There  is  a  clear  distinction  between  a  want  of  service 
and  a  defective  service.  If  there  has  been  an  attempted 
service,  and  the  question  is  one  of  fact  as  to  whether  the 
proper  service  was  made,  or  one  of  law,  whether  the  acts 
done  constituted  sufficient  service  or  not,  the  presumption 
will  be  indulged  that  the  court  considered  and  determined 
the  question,  and  the  defect  can  only  be  taken  advantage 
of  by  a  direct  attack.^  This  rule  has  been  held  to  apply 
as  well  to  constructive  as  to  actual  notice.^  And  the  re- 
citals in  the  record  of  a  court  of  general  jurisdiction  show- 
ing that  jurisdiction  has  been  obtained  by  constructive 
service,  are  sufficient  to  uphold  the  judgment  as  against  a 
collateral  attack,  where  the  same  is  not  disputed  by  the 
record  itself.* 

The  cases  cited  go  a  long  way  to  uphold  a  judgment  by 
the  recitals  in  the  record.  It  is  held  that  such  recitals  are 
conclusive  in  case  of  a  collateral  attack,  even  as  against 
the  affidavit  for  an  order  of  publication  and  the  order 
itself,  on  the  ground  that  such  affidavit  and  order  are  not 
parts  of  the  judgment  roll,  and  can  not  be  looked  to  to 
dispute  the  recitals  in  the  judgment.  In  California,  cer- 
tain papers  and  documents  constitute  the  judgment  roll. 
The  judgment  roll  constitutes  the  record  in  the  absence 
of  a  bill  of  exceptions,  or  statement  on  appeal,  which  can 
only  become  part  of  the  record  in  case  of  a  direct  attack. 
Consequently,  as  the  affidavit  and  order  for  publication 
constitute  no  part  of  the  judgment  roll,  or  record,  to  al- 

1  Settlemier  v.  Sullivan,  97  U.  S.  444. 

^  Ante,  sees.  22,  23  ;  Freeman  on  Judg.,  sec.  126. 

*  In  re  Newman,  75  Cal.  213;  16  Pac.  Rep.  887;  Sichler  v.  Look,  93 
Cal.  600  ;  29  Pac.  Rep.  220. 

*  McCauley  v.  Fulton,  44  Cal.  355,  361 ;  In  re  Newman,  75  Cal.  213 ;  16 
Pac.  Rep.  887 ;  Sichler  v.  Look,  93  Cal.  600 ;  29  Pac.  Rep.  220. 


PRESUMPTIONS    IN    FAVOR    OF   JURISDICTION.  165 

low  the  recitals  in  the  record  to  be  disputed  by  such  affi- 
davit or  order  would  be  to  allow  a  judgment,  valid  on  its 
face,  to  be  attacked  by  matters  dehors  the  record,  which  is 
not  allowed  in  case  of  a  domestic  judgment.^ 

Where  the  affidavit  or  other  proceeding  necessary  t© 
give  jurisdiction  is  a  part  of  the  judgment  roll,  or  of  the 
record,  and  it  appears  therefrom  that  the  necessary  steps 
were  not  taken,  a  recital  in  the  record  showing  jurisdic- 
diction  will  not  prevail  against  the  record  itself^ 

Where  the  attack  upon  the  judgment  is  direct,  it  has 
been  held  that  a  recital  of  service  in  the  record  will  not 
supply  the  place  of  the  necessary  affidavit,  order,  and 
proof  of  publication.^ 

The  means  by  which  a  judgment  may  be  assailed  and 
overthrown,  by  showing  want  of  jurisdiction,  depend  upon 
whether  the  attack  is  direct  or  collateral.  In  case  of  an 
attack  upon  a  domestic  judgment  of  a  court  of  general  ju- 
risdiction, if  the  attack  is  collateral,  the  mere  entry  of  a 
judgment  is  conclusive  that  the  court  had  jurisdiction  to 
enter  it,  unless  the  record  shows  to  the  contrary.  If  the 
attack  is  direct,  the  defendant  may,  by  bill  of  exceptions, 
present  evidence  outside  of  the  record  to  show  a  want  of 
jurisdiction.  But  in  either  case  the  record  is  conclusive 
unless  directly  disproved,  and  such  proof  properly  incor- 
porated in  the  record  and  made  a  part  of  it  by  bill  of  ex- 
ceptions, or  some  other  authorized  mode.* 

'  Ante,  sees.  22,  23. 

'  Barber  v.  Morris,  37  Minn.  194 ;  33  N.  W.  Rep.  559. 

'  Weeks  v.  Gold  Mining  Co.,  73  Cal.  599 ;  15  Pac.  Rep.  .302. 

*  Sichler  v.  Look,  93  Cal.  600,  605 ;  29  Pac.  Rep.  220 ;  Lyons  v.  Roach, 
84  Cal.  27  ;  23  Pac.  Rep.  1026. 

"The  presumption  of  verity  which  attaches  to  the  record  of  a  domes- 
tic judgment  is  the  same  upon  a  direct  appeal  therefrom  as  exists  in  a 
collateral  attack,  the  only  difference  being  that  upon  a  direct  appeal  it 
is  essential  for  the  party  seeking  to  sustain  the  judgment  to  show  by  the 
record  itself  that  the  court  had  jurisdiction  of  the  defendant,  whereas 
in  a  collateral  attack  the  entry  of  the  judgment  is  itself  conclusive  of 
such  jurisdiction.  Upon  a  direct  attack,  there  is  no  presumption  in 
favor  of  the  existence  of  any  fact  essential  to  the  jurisdiction  of  the 
court  over  the  defendant;  but  in  all  matters  of  which  the  judgment 
contains  a  record,  its  verity,  in  the  absence  of  any  contradictory  evi- 


166  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

The  general  rule  is  that  where  a  court  has  once  acquired 
jurisdiction,  it  has  a  right  to   decide  every  question  which 

dence,  will  be  presumed  as  fully  as  upon  a  collateral  attack.  The  de 
fendant  may,  upon  a  direct  appeal,  by  bill  of  exceptions,  present  evi 
dence  outside  of  the  record  for  the  purpose  of  showing  that  the  court 
did  not  have  jurisdiction  over  him,  while  in  a  collateral  attack  such  ob- 
jection is  available  only  when  it  appears  from  t  ehrecord  itself.  In  both 
cases  the  record  is  conclusive  as  to  all  matters  as  to  whiclvit  speaks,  un- 
less impeached  in  the  foregoing  manner.  As  was  said  by  Mr.  Justice 
McFarland  in  Lyons  v.  Roach,  84  Cal.  30 :  'The  main  difference  between 
collateral  and  direct  attack  is,  that  in  the  former  the  record  alone  can 
be  inspected,  and  is  conclusively  presumed  to  be  correct ;  while  on  di- 
rect attack  the  true  facts  may  be  shown,  and  thus  the  judgment  itself 
on  appeal  maybe  reversed  or  modified.'  The  recitals  in  a  judgment 
are  the  court's  record  of  its  own  acts,  and  although  upon  a  direct  appeal 
the  jurisdiction  of  the  court  is  not  to  be  established  by  its  mere  asser- 
tion in  the  judgment  that  it  had  acquired  jurisdiction,  yet  if  such  re- 
cital finds  sujiport  in  other  portions  of  the  record,  which  under  any 
condition  of  facts  could  exist,  it  will  be  presumed,  in  the  absence  of  any 
contradictory  showing,  that  such  condition  of  facts  existed. 

"The  record  of  the  judgment  is  the  judgment  roll.  The  documents 
which  shall  constitute  this  record  are  specified  in  section  670  of  the 
Code  of  Civil  Procedure  to  be  :  '  In  case  the  complaint  be  not  answered 
by  any  defendant,  the  summons,  with  the  affidavit  or  proof  of  service, 
and  the  complaint,  with  a  memorandum  indorsed  thereon,  that  the  de- 
fault of  the  defendant  in  not  answering  was  entered,  and  a  copy  of  the 
judgment;'  and  section  415  of  the  Code  of  Civil  Procedure  provides 
that  'proof  of  the  service  of  summons  and  complaint  must  be  :  .  . 
3.  In  case  of  publication,  the  affidavit  of  the  printer,  or  his  foreman  or 
principal  clerk,  showing  the  same,  and  an  affidavit  of  a  deposit  of  a 
copy  of  the  summons  in  the  post-office,  if  the  same  has  been  deposited.' 

"  Under  these  provisions,  we  must  hold  that  the  record  of  the  judg- 
ment in  the  present  case  affirmatively  shows  that  the  court  had  juris- 
diction of  the  appellant.  It  is  recited  therein  that  he  had  been  '  duly 
and  regularly  summoned,'  and  there  is  found  in  the  judgment  roll,  in 
support  of  this  recital  in  the  judgment,  an  affidavit  of  publication  o 
the  summons,  and  of  a  deposit  of  a  copy  thereof,  as  required  by  the 
statute.  The  statute  has  provided  that,  under  certain  circumstances, 
the  court  may  obtain  jurisdiction  of  a  defendant  by  a  service  of  the 
summons  by  publication,  and  what  shall  be  the  proof  of  such  service;  and 
in  support  of  the  judgment  of  the  court,  it  will  be  presumed  upon  a 
direct  appeal,  in  the  absence  of  any  evidence  to  the  contrary,  that  this 
mode  of  service  was  made  under  a  proper  order  of  the  court  therefor, 
and  that  a  sufficient  affidavit  for  such  order  was  presented  to  the  court 
before  making  the  order. 

"  The  order  of  publication  bearing  date  September  23,  1890,  can  not 
be  considered  for  the  purpose  of  impeaching  the  record  of  the  judg- 


PRESUMPTIONS    IX    FAVOR    OF    JURISDICTION.  167 

arises  in  the  cause,  and  it  will  be  presumed  that  its  ju- 
risdiction was  properly  exercised  throughout.^  But  this 
is  so  only  where  the  court  has,  after  obtaining  jurisdiction, 
proceeded  according  to  the  established  modes  governing 
the  class  to  which  the  case  belongs,  and  has  not  transcended, 
in  the  extent  or  character  of  its  judgment,  the  law  ap- 
plicable to  such  cases.^  It  is  said  that  there  can  be  no 
presumption  in  favor  of  jurisdiction  of  the  person  in  case 
of  default  without  appearance  or  service.'  This  is  un- 
doubtedly true  where  the  attack  is  on  appeal.  In  such 
case  it  is  held  that  the  record  must  show  affirmatively  that 
the  defendant  was  served,  or  the  cause  will  be  reversed.* 
But  it  will  be  seen  that  in  some,  at  least,  of  the  cases 
cited,  it  was  held  that  the  entry  of  judgment  by  default, 
without  a  showing  in  the  record  of  service,  was  erroneous 
because  the  statute  required  that  in  case  of  a  judgment  by 
default  the  summons  and  return,  or  notice  and  proof  of 
publication  thereof,  must  be  a  part  of  the  record.*  In 
none  of  the  cases  is  the  judgment  held  to  be  void  for  want 
of  jurisdiction.  They  hold  that  such  a  judgment  is  er- 
roneous.    There  is  no  distinction  between  a  judgment  by 

ment,  and  can  not  be  used  in  contradiction  of  such  record,  any  more 
than  any  other  order  or  minute  of  the  court  made  in  the  action.  Upon 
an  appeal  from  a  final  judgment,  the  only  papers  that  can  be  considered, 
where  there  is  no  bill  of  exceptions,  are  the  notice  of  appeal  and  judg- 
ment roll.  (Spinetti  v.  Brignardello,  53  Cal.  283.)  If  the  appellant  had 
desired  to  show  that  no  order  for  publication  was  made  until  September 
23d,  and  that  the  publication  and  mailing  of  the  summons  were  prema- 
ture and  unauthorized,  he  should  have  presented  such  facts  in  a  bill  of 
exceptions  by  which  the  proofs  upon  which  he  would  rely  would  be 
properly  authenticated."  Sichler  v.  Look,  93  Cal.  600,  605;  29  Pac. 
Rep.  220. 

1  Wells'  Jur.,  sec.  38. 

2  Windsor  v.  ]\JcVeigh,  93  U.  S.  274  ;  anie,  sec.  22. 
'  Elliott's  App.  Pro.,  sec.  716. 

"  Rany  v.  The  Governor,  4  Blkf.  (Ind.),  2  ;  Cochnower  v.  Cochnower, 
27  Ind.  253;  Houk  r.  Barthold,  73  Ind.  21,  28;  New  Albany,  etc.,  R.  R. 
Co.  r.  Welsh,  9  Ind.  479;  Townsend  r.  Townsend,  21  111.  540;  Cole  v. 
Allen,  51  Ind.  122 ;  Wilkinson  v.  Bayley,  71  Wis.  131 ;  36  N.  W.  Rep. 
836 ;  Sichler  r.  Look,  93  Cal.  600 ;  29  Pac.  Rep.  220. 

*  Cochnower  v.  Cochnower,  27  Ind.  254  ;  New  Albany,  etc.,  R.  R.  Co. 
V.  Welsh,  9  Ind.  479. 


168  GENERAL    PKINCIPLES    AFFECTING    JURISDICTION. 

default  and  any  other  judgment  in  respect  of  the  pre- 
sumption of  jurisdiction  where  the  attack  upon  it  is  col- 
lateral.^ It  will  be  presumed  that  the  judgment  was  sup- 
ported by  and  within  the  issues  raised  by  the  pleadings, 
and  that  it  is  supported  by  whatever  is  essential  to  its 
validity.'^  Where  the  action  is  one  affecting  real  estate, 
and  the  complaint  does  not  show  where  the  land  is  situ- 
ated, it  will  be  presumed  to  bave  been  within  the  jurisdic- 
tion of  the  court.'  Where  the  jurisdiction  of  an  inferior 
court  has  attached,  the  same  presumption  prevails  in  favor 
of  its  subsequent  proceedings  that  does  in  favor  of  those 
of  a  superior  court.^ 

26.  Effect  of  want  of  jurisdiction. — The  general  rule 
is  that  a  judgment  rendered  by  a  court  without  jurisdic- 
tion of  the  subject-matter,  or  of  the  person  of  the  defend- 
ant, is  absolutely  void.^  But  this  is  not  true  in  all  cases 
A  judgment  may  show  on  its  face  that  the  court  had  ju- 
risdiction when  in  fact  it  had  not.  In  such  case,  with 
respect  to  domestic  judgments  of  courts  of  general  juris- 
diction, the  general  rule  is  that  the  showing  of  juris- 
diction, on  the  face  of  the  record,  is  conclusive  as  against 
a  collateral  attack.^  Therefore,  tbe  judgment  is  not  void, 
but  voidable  only.  So  the  judgment  of  a  domestic  court 
of  general  jurisdiction  may  be  valid,  although  the  court 
was  without  jurisdiction  to   render  it,  because  the  judg- 

1  Hahn  r.  Keliy,  34  Cal.  391,  402;  94  Am.  Dec.  742;  Sichler  v.  Look, 
93  Cal.  600;  29  Pac.  Rep.  220 ;  Crane  v.  Kimmer,  77  Ind.  215,  218  ;  lies  v. 
Watson,  76  Ind.  359,  361 ;  Anderson  v.  Gray,  134  111.  550 ;  25  N.  E.  Rep.  843. 

*  Elliott's  App.  Pro.,  sees.  718,  719. 

^  Ante,  sees.  11,  15;  Brown  v.  Anderson,  90  Ind.  93;  Warmoth  r.  Dry- 
den,  125  Ind.  355;  25  N.  E.  Rep.  433. 

*  Cooper  1'.  Sunderland,  3  la.  114  ;  66  Am.  Dec.  52  ;  Purslej^  v.  Hayes, 
22  la.  11 ;  92  Am.  Dec.  350,  374,  note. 

^  Webb  r.  Carr,  78  Ind.  455;  Lovejoy  v.  Albee,  33  Me.  414;  54  Am. 
Dec.  630;  Rodgers  v.  Evans,  8  Ga.  143;  52  Am.  Dec.  390,  392,  note;  1 
Black  on  Judg.,  sec.  218;  Freeman  on  Judg.,  sec.  120;  12  Am.  &  Eng. 
Enc.  of  Law,  311;  Swiggart  v.  Harber,  4  Scam.  364;  39  Am.  Dec.  418; 
Hahn  r.  Kelly,  34  Cal.  391 ;  94  Am.  Dec.  742. 

*  Ante,  sees.  23,  25  ;  1  Black  on  Judg.,  sec.  218;  Hahn  r.  Kelly,  34  Cal. 
391 ;  94  Am.  Dec.  742. 


EFFECT    OF    WANT    OF    JURISDICTION.  169 

ment  appears  on  its  face  to  be  valid. ^  Not  only  so,  but  as 
against  a  collateral  attack,  the  weight  of  authority  is  to 
the  effect  that  the  jurisdiction  of  such  a  court  will,  where 
the  record  is  silent  on  the  subject,  be  conclusively  pre- 
sumed.^ Therefore,  a  judgment  rendered  without  juris- 
diction may  be  valid  because  of  the  presumption  that  olT- 
tains  in  its  favor.  These  presumptions  can  not  prevail, 
however,  where  the  powers  of  the  court  are  special.^  Or 
where  the  court  must,  having  jurisdiction  of  the  subject- 
matter,  proceed  in  a  certain  way  provided  by  statute,  and 
the  record  shows  that  the  mode  prescribed  has  not  been 
followed.^  Or  where  the  law  is  such  that  the  court  could 
not,  under  any  circumstances,  have  jurisdiction.* 

And  it  must  be  borne  in  mind  that,  while  the  weight  of 
authority  seems  to  be  against  the  right  to  attack  a  domes- 
tic judgment  of  a  court  of  general  jurisdiction  collaterally, 
where  the  judgment  appears  upon  its  face  to  be  valid,  or 
where  the  record  is  silent  on  the  subject,  there  are  numer- 
ous cases  holding  that  neither  the  presumption  in  favor 
of  jurisdiction  nor  the  recitals  in  the  record  are  conclu- 
sive; that  the  judgment  is  always  open  to  attack  collater- 
ally, and  that  a  want  of  jurisdiction  may  be  shown  by 
parol  or  otherwise.^ 

The  presumption  of  jurisdiction,  or  recitals  in  the  record, 
are  not  conclusive  in  case  of  a  foreign  judgment.^ 

A  void  judgment  is  no  judgment.  It  confers  no  rights 
and  is  no  protection  to  an  officer  acting  under  process 
founded  upon  it.^     It  is  unavailing  for  any  purpose.*     A 

'  Ante,  sees,  23,  25. 

■•'  Ante,  sec.  25 ;  Coit  v.  Haven,  30  Conn.  190 ;  79  Am.  Dec.  244,  249, 
note  ;  1  Black  on  Judg.,  sec.  218. 
■''  Ante,  sees.  20,  23,  25 ;  Dynes  r.  Hoover,  20  How.  65. 

*  Webb.  r.  Carr;  78  Ind.  455 ;  Gilliland  r.  Adm'r  of  Sellers,  2  Ohio  St. 
223;  Fi-eeman  on  Judg.,  sec.  120  ;  Withers  v.  I'atterson.  27  Tex.  491  ;  SO 
Am.  Dec.  643,  647. 

^  Ante,  sees.  23,  25;  Horner  v.  State  Bank  of  Indiana,  j.  Ind.  130:  48 
Am.  Dec.  355,  359,  note. 

*  Ante,  sees.  23,  25  ;  2  Black  on  Judg.,  sees.  818,  835  ;  Thorn  i\  Salmon- 
son,  37  Kan.  441 ;  15  Pac.  Rep.  588. 

'  Wise  V.  Withers,  3  Cranch,  331 ;  Dynes  v.  Hoover,  20  How.  65  ;  Bige- 
low  V.  Stearns,  19  .Johns.  (N.  Y.)  .39;  10  Am.  Dec.  189. 
«  Frankel  ?-.  Satterfield,  19  Atl.  898. 


170  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

judgment  that  is  void  on  its  face  may  be  collaterally  at- 
tacked at  any  time  and  however  the  question  of  its  validity 
may  arise/  A  court  of  equity  will  not  set  it  aside  because 
it  is  a  nullity.^  It  is  otherwise  where  the  invalidity  of  the 
judgment  is  not  apparent  on  its  face.^ 

27.  Inherent  powers  of  courts. — All  courts  of  general 
and  superior  jurisdiction  are  possessed  of  certain  inherent 
powers  not  conferred  upon  them  by  express  provisions  of 
law,  but  which  are  necessary  to  their  existence  and  the 
proper  discharge  of  the  duties  imposed  upon  them  bylaw.* 
Of  these  inherent  powers,  the  following  may  be  enumer- 
ated: To  punish  for  contempt;^  to  pass  upon  the  consti- 
tutionality of  statutes  f  to  make,  modify,  enforce,  and 
suspend  rules  for  the  regulation  of  business  before  the 
court  ;^  to  grant  new  trials;^  to   open  up,  vacate,  and  re- 

1  Ante,  sec.  23 ;  Horton  v.  Howard,  79  Mich.  642  ;  44  N.  W.  Rep.  1112  ; 
Frankel  v.  Satterfield,  19  Atl.  Rep.  898 ;  Whitwell  v.  Barber,  7  Cal.  54. 

2  Ante,  sec.  23.  ^  Corwith  v.  Griffiny,  21  Barb.  9. 

*  Ex  parte  Adams,  25  Miss.  883 ;  59  Am.  Dee.  234;  3  Am.  &  Eng.  Enc. 
of  Law,  799,  and  cases  cited;  Smythe  v.  Boswell,  117  Ind.  365;  20  N.  E. 
Rep.  263;  Sanders  v.  The  State,  85  Ind.  318,  328;  44  Am.  Rep.  29;  Elli- 
ott's App.  Pro.,  sees.  6,  7;  Rottman  v.  Bartling,  37  N.  W.  Rep.  668. 

*  Ex  parte  Smith,  28  Ind.  47 ;  Ex  parte  Adams,  25  Miss.  883 ;  59  Am. 
Dec.  234,  243,  note ;  Neel  r.  State,  9  Ark.  259 ;  50  Am.  Dec.  209 ;  Little  r. 
The  State,  90  Ind.  338 ;  46  Am.  Rep.  224. 

"  That  courts  possess  inherent  powers  not  derived  from  any  statute  is 
undeniably  true.  Among  these  powers  are  the  right  to  correct  their 
records  so  as  to  make  them  speak  the  truth,  to  pass  upon  the  constitu- 
tionality of  statutes,  to  prevent  the  abuse  of  their  authority  or  process, 
and  to  enforce  obedience  to  their  mandates.  If  it  were  granted  that 
courts  possess  only  such  rights  and  powers  as  are  conferred  by  statute, 
they  would  be  mere  creatures  of  the  legislature,  and  not  independent 
departments  of  the  government.  They  are  not  mere  creatures  of  the 
legislature,  but  are  co-ordinate  branches  of  the  government,  and  in  their 
sphere  not  subject  to  legislative  control.  Deutschman  v.  Town  of 
Charlestown,  40  Ind.  449  ;  Cooley's  Const.  Lim.  114, 116 ;  2  Story's  Const. 
377."     Sanders  v.  The  State,  85  Ind.  318,  328 ;  44  Am.  Rep.  29. 

8  Sanders  v.  The  State,  85  Ind.  318,  328 ;  44  Am.  Rep.  29 ;  Elliott's  App 
Pro.^  sec.  6. 

"  12  Am.  &  Eng.  Enc.  of  Law,  450;  Elliott's  App.  Pro.,  sec.  7 ;  Symons 
r.  Bunnell,  20  Pac.  Rep.  859;  Shane  v.  McNeill,  76  la.  459;  41  N.  W. 
Rep.  166. 

*  16  Am.  &  Eng.  Enc.  of  Law,  616;  Commonwealth  r.  McElhaney,  111 
Mass.  439,  441. 


I 


INHERENT    POWERS    IN    COURTS.  171 

lieve  parties  from  judgments;^  to  issue  writs  of  mandate 
and  injunction  in  aid  of  their  jurisdiction  f  to  recall  and 
otherwise  control  their  process  f  to  control  and  direct  their 
ofhcers,  including  attorneys  ;*  to  amend  their  records  and 
proceedings  f  to  appoint  and  remove  necessary  employees 
and  assistants  of  the  court  f  to  grant  alimony  f  to  prevent 
the  enforcement  of  a  judgment  obtained  by  duress  or 
fraud  ;^  and  to  suspend  or  disbar  attorneys,  or  strike  their 
names  from  the  roll.^  These  and  others  of  like  nature  are 
sometimes  treated  of  as  incidental  powers  for  the  reason, 
it  is  presumed,  that  they  are  not  an  exercise  of  the  juris- 
diction of  the  court  in  the  ordinary  and  direct  way,  but 
for  the  purpose,  usually,  of  making  its  ordinary  exercise 
of  jurisdiction  effectual,  and  regulating  the  mode  and 
manner  of  exercising  such  jurisdiction.^*'  And  jurisdiction 
is  sometimes  divided  into  formal  and  summary^  the  latter 
including  the  powers  we  are  now  considering.^^ 

1  State  V.  Sowders,  42  Kan.  312 ;  22  Pac.  Rep.  425 ;  Nealis  v.  Dicks,  72 
Ind.  374;  Kemp  r.  Cook,  18  Md.  130;  79  Am.  Dec.  681,  684;  Ladd  v. 
Stevenson,  112  N.  Y.  325  ;  19  N.  E.  Rep.  842. 

*  Elliott's  App.  Pro.,  sec.  45. 

'  McLean  County  Bank  v.  Flagg,  31  111.  290;  83  Am.  Dec.  224;  Loomis 
V.  Lane,  29  Pa.  St.  242;  72  Am.  Dec.  625;  Watson  v.  Reissig,  24  111.  281 ; 
76  Am.  Dec.  746,  748,  note. 

*  In  re  Monroe,  46  Fed.  Rep.  52 ;  post,  sec.  31. 

*  Burnett  v.  State,  14  Tex.  455;  65  Am.  Dec.  131  ;  Territory  v.  Chris- 
tenson,  31  N.  W.  Rep.  847;  Ex  parte  Henderson,  84  Ala.  36;  4  South. 
Rep.  284;  Crim  v.  Kessing,  89  Cal.  478. 

*  In  re  Janitor  of  Supreme  Court,  35  Wis.  410. 

'  Galland  r.  Galland,  38  Cal.  265;  Butler  v.  Butler,  4  Littell  (Ky.),  202; 
Poole  r.  Wilber,  30  Pac.  Rep.  548. 

8  Sanders  v.-  The  State,  85  Ind.  318 ;  44  Am.  Rep.  29.  » Post,  sec.  31. 

'»  Wells'  Jur.,  sec.  140  et  seq.;  Brown  r.  Brown,  4  Ind.  627;  58  Am. 
Dec.  641;  In  re  Hawley,  104  N.  Y.  250 ;  10  N.  E.  Rep.  352,  357. 

"  "The  history  and  constitution  of  the  courts  in  which  an  action  is 
commenced  having  been  thus  stated,  it  is  time  to  proceed  to  the  con- 
sideration of  the  steps  taken  in  the  action  itself.  Before  doing  so,  how- 
ever, it  is  rfght  to  state  in  what  manner  these  formal  steps  are  liable  to 
be  affected  or  controlled  by  the  summary,  or,  as  it  is  sometimes  called, 
equitable  jurisdiction  of  the  courts,  for  the  jurisdiction  of  the  superior 
courts  is  of  two  descriptions,  summary  and  formal.  The  latter  consists 
in  the  sanction  given  by  the  authority  of  the  court  to  those  formal  de 
cursu  proceedings  which  constitute  the  ordinary  and  regular  steps  in  a 
suit;  thus  it  is  by  virtue  of  its  formal  jurisdiction  that  the  court  issues 


172  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION'. 

And  sometimes  their  powers    not   expressly    conferred 

a  writ  to  compel  the  defendant  to  appear ;  that  it  allows  the  plaintiff  to 
sign  judgment  against  the  defendant  if  he  make  default  in  pleading ; 
and,  finally,  that  it  awards  execution  in  favor  of  the  successful  party. 
This  is  all  done  by  virtue  of  its  formal  de  cursu  jurisdiction. 

"  But  the  courts  have  another  sort  of  jurisdiction,  a  jurisdiction  exer- 
cised in  any  stage  of  the  suit  in  which  it  becomes  necessary,  and  en- 
abling them,  in  a  summary  manner,  and  on  equitable  principles,  to  pre- 
vent hardships,  irregularities,  and  abuses,  which  would  otherwise  take 
place  in  the  course  of  proceedings.  This  is  called  their  summary  juris- 
diction, and  is  exercised  by  making  rules  and  orders ;  not  that  every 
rule  emanates  from  the  equitable  juricdiction  of  the  court;  for  some 
rules  there  are  which  constitute  part  of  its  formal  de  cursu  proceedings  ; 
for  instance,  making  a  judge's  order  a  rule  of  court.  It  is  not,  there- 
fore, intended  to  state,  that  all  rules  or  orders  emanate  from  the  sum- 
mary and  equitable  jurisdiction  of  the  court,  but  those  only  on  granting 
or  refusing  which  the  court  or  judge  hears  argument  and  exercises  a 
discretion. 

"  In  treating  of  the  summary  jurisdiction  of  the  courts  we  will  inquire, 
first,  in  what  cases  it  exists;  secondly,  how  it  is  exercised. 

"  First,  then,  when  does  it  exist?  It  exists,  either  at  common  law,  or 
under  the  provisions  of  certain  acts  of  parliament.  So  far  as  it  exists  at 
common  law,  it  is  calculated  to  effect  one  of  four  purposes. 

"  1.  To  prevent  the  regulations  of  the  courts  from  being  infringed. 

"2.  To  prevent  their  authority  from  being  abused. 

"3.  To  prevent  it  from  producing  hardship. 

"  4.  To  enforce  good  conduct  on  the  part  of  those  who  are  peculiarly 
within  their  jurisdiction. 

"  First,  then,  the  court  interferes  summarily  to  prevent  breaches  of  its 
own  regulations.  Under  this  head  do  all  those  cases  range  themselves, 
in  which  it  interferes  to  set  aside  proceedings  for  irregularity;  thus, 
there  are  certain  rules  which  regulate  the  time  for  signing  judgment; 
and  if  judgment  be  signed  before  the  time  prescribed  by  them,  the 
court  will  set  it  aside  for  irregularity.  Now,  this  it  does  by  virtue  of 
its  summary  jurisdiction,  which  it  exercises,  in  this  case,  for  the  pur- 
pose of  preventing  a  breach  of  its  own  regulations.  And  so  in  every 
case  where  a  rule  or  regulation  of  a  court  is  infringed,  it  will,  on  appli- 
cation, set  aside  the  proceeding  which  has  infringed  it.  But  it  is  most 
important  to  remember,  that  every  application  upon  this  score  must  be 
m&de  as  speedily  as  possible ;  for  R.  135,  H.  T.  1853,  provides,  that,  'No 
application  to  set  aside  process  or  proceedings  for  irregularity  shall  be 
allowed,  unless  made  within  a  reasonable  time ;  nor  if  the  party  ap- 
plying has  taken  a  fresh  step,  after  knowledge  of  the  irregularity.' 

"  Secondly.  The  court  exercises  its  summary  jurisdiction  to  prevent  its 
own  process  or  authority  from  being  abused.  Thus,  if  a  designing  per- 
son were,  by  false  representations,  to  induce  a  poor  ignorant  man  to 
sign  a  cognovit,  or  execute  a  warrant  of  attorney,  the  court  would  relieve 


I 


INHERENT    POWERS    OG    COURTS.  173 

by  law  are  classed  under  the  head  of  constructive  author- 
ity.^ 

Such  inherent  powers  of  courts  as  are  necessary  to  the 

him.  So,  if  a  judgment  be  signed  contrary  to  good  faith,  it  will  be  set 
aside  ;  and  so,  if  a  plaintiff  vexatiously  bring  two  actions  for  the  same 
cause,  the  court  will  force  him  to  elect  between  them.  In  these. cases, 
and  such  as  these,  the  courts  interfere  in  order  to  prevent  their  rules 
and  their  authority,  created  as  both  are  for  the  advancement  of  justice, 
from  being  perverted  and  abused,  so  as  to  produce  injustice  and  op- 
pression. And  it  is  plain  that  the  administration  of  the  laws  would  be 
in  danger  of  falling  into  disrepute,  were  it  not  for  this  salutary  exercise 
of  jurisdiction. 

"  Thirdly.  The  third  class  of  cases  in  which  the  courts  exercise  their 
summary  jurisdiction  is,  where  it  is  necessary  so  to  do,  in  order  to 
prevent  their  own  rules  from  producing  hardship.  Thus,  where  a  de- 
fendant, through  some  accident,  has  not  delivered  his  plea  within  the 
proper  time,  and  judgment  by  default  is  signed  against  him,  this,  though 
illiberal,  when  done  so  hastily  as  to  amount  to  what  is  called  '  snapping  a 
judgment,'  is  nevertheless  regular,  because  the  rules  of  the  court  give 
the  plaintiff  a  right  to  do  it.  However,  as  it  would  be  an  extremely  hard 
thing  if  the  defendant  were  to  be  shut  out  of  a  good  defense  by  a  slight 
mistake  on  the  part  of  his  attorney,  the  court  to  prevent  this  hardship 
will  interpose  its  summary  jurisdiction,  and  will  set  aside  the  judgment 
upon  proper  terms.  In  a  word,  whenever  the  suitor  can  point  out  some 
great  hardship  likely  to  arise  from  a  strict  observance  of  the  rules  by 
which  the  practice  of  the  court  is  governe,d  there  he  may  apply  for  re- 
lief, which,  ordinarily,  will  be  granted ;  unless,  indeed,  he  be  willfully 
late  in  making  application,  or,  unless  the  grant  of  relief  to  him  would 
impose  hardship  on  the  opposite  party.  But  this  relief  is  granted  as 
a  favor,  not  as  a  right,  and  the  court  will,  in  bestowins:  it,  impose  any 
terms  it  thinks  proper.  Thus,  it  almost  invariably  imposes  the  pay- 
ment of  any  costs  which  the  other  party  may  have  incurred,  and  fre- 
quently, as  for  instance,  in  the  case  of  setting  aside  a  regular  judgment, 
insists  upon  an  affidavit  of  merits;  and  this  is  very  right,  for  how 
ridiculous  would  it  be  to  relieve  a  defendant  from  a  judgment  when  he 
has  no  meritorious  defense  to  the  action,  but  is  only  anxious  to  post- 
pone the  payment  of  a  fair  debt,  and  set  up  vexatious,  quibbling  ob- 
jections to  a  just  demand. 

"  Under  this  head  are  also  to  be  ranked  application  for  further  time 
to  plead,  and  for  leave  to  amend.  But  this  beneficial  power  of  the 
courts  to  amend  has  been  greatly  increased  by  different  statutes. 

"  Fourthly.  The  courts  exercise  their  summary  jurisdiction  for  the  pur- 
pose of  preventing  misconduct  in  their  own  officers,  and  persons  im- 
mediately under  the  control  of  the  courts.  Thus,  as  attorneys  are  offi- 
cers of  the  courts,  supposed  to  be  always  in  attendance  there,  and  in- 


In  re  Hawley,  104  N.  Y.  250;  10  N.  K.  Rep.  C52,  357. 


174  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

proper  discharge  of  their  duties,  and  the  exercise  of  their 
jurisdiction,  can  not  be  taken  away  by  the  law-making 
power  ;^  but  they  may  be  regulated  by  law,  and  confined 
to  proper  limits.^ 

The  tendency  of  later  legislation  seems  to  be  to  limit 
and  abridge  the  inherent  powers  and  summary  jurisdiction 
of  courts.  Especially  is  this  the  case  in  the  matter  of  con- 
tempt proceedings.  It  is  usually  held  that  the  law-mak- 
ing power  may  limit  the  powers  of  the  court  in  this  re- 
spect as  to  the  extent  of  the  punishment  that  may  be  in- 
flicted and  provide  for  and  regulate  the  procedure  in  such 
cases,'  but  that  the  power  to  punish  for  contempt  is  abso- 
lutely necessary  to  the  existence  and  usefulness  of  the 
courts,  and  can  not  be  taken  away  altogether.* 

vested  as  such  with  certain  privileges  and  immunities,  the  courts  think 
themselves  bound  to  enforce  the  strictest  observance  of  good  faith  and 
propriety  on  their  part,  and  will  always  listen  to  complaints  founded 
upon  their  conduct  as  attorneys.  I  say  as  attorneys,  for  the  courts  do 
not  attempt  to  exercise  control  over  their  conduct  in  their  own  private 
affairs,  which  have  nothing  to  do  with  their  professional  character.  Ex 
parte  Aitkin,  4  B.  &  Aid.  49.''  Smith's  Ac.  at  Law,  20. 
^  In  re  Janitor  Supreme  Court,  35  Wis.  410. 

2  Smyth  V.  Boswell,  117  Ind.  365;  20  N.  E.  Rep.  263;  Nealis  v.  Dicks, 
72Ind.  374;  Maxwell  i>.  Rives,  11  Nev.  213;  Wyandotte  Rolling  Mills 
Co.  V.  Robinson,  34  INIich.  427. 

3  In  re  Pierce,  44  Wis.  411 ;  Wyatt  v.  People,  28  Pac.  Rep.  961. 

*  Hawkins  v.  State,  125  Ind.  570 ;  25  N.  E.  Rep.  818 ;  Little  v.  The 
State,  90  Ind.  338 ;  46  Am.  Rep.  224 ;  Holman  v.  The  State,  105  Ind.  513 ; 
5  N.  E.  Rep.  556 ;  Wyatt  v.  People,  28  Pac.  Rep.  961. 

"  The  power  of  the  courts  necessarily  comes  from  the  constitution ; 
for,  while  it  is  true  that  the  legislature  does  possess  powers  in  their  na- 
ture judicial,  it  does  not  possess  purely  judicial  powers— that  is  such 
powers  as  courts  of  justice  exercise.  As  the  legislature  possesses  no 
purely  judicial  power,  it  can  delegate  none,  although  it  may,  in  accord- 
ance with  the  constitution,  create  and  designate  judicial  tribunals  in 
which  the  power  shall  reside.  When  a  court  is  created  by  the  legisla- 
ture under  the  constitution,  all  the  powers  essential  to  the  existence  of 
the  tribunal,  and  the  due  exercise  of  its  powers,  at  once  vest  in  it  from 
the  constitution.  Among  the  powers  whicli  vest  in  a  constitutional 
court,  such  as  our  circuit  courts,  is  that  of  maintaining  its  existence  and 
dignity  by  punishing  those  who  assume  to  treat  it  with  contempt.  This 
power,  as  has  often  been  held,  is  an  inherent  one,  and  exists  independ- 
ently of  statute.  Little  v.  State,  90  Ind.  338;  Holman  v.  State,  105  Ind. 
513 ,  5  N.  E.  Rep.  556 ;  Anderson  v.  Dunn,  6  Wheat.  204 ;  Ex  parte  Rob- 


INHERENT    POWERS    OF    COURTS.  175 

It  is  said  that  the  power  to  punish  for  contempt  is  ex- 
ercised for  two  purposes  :  1.  To  vindicate  the  dignity  of 
the  court,  for  disrespect  shown  to  it  or  its  orders.  2.  To 
compel  the  performance  of  some  order  or  decree  of  the 
court,  which  it  is  in  the  power  of  the  party  to  perform^ 
and  which  he  refuses  to  obey.^ 

The  power  extends  to  the  preservation  of  order  and  de- 
corum in  the  presence  of  the  court,  which  are  essential  to 
the  proper  discharge  of  its  duties  and  the  maintenance  of 
its  dignity,  and  the  public  respect,^  and  to  securing  obe- 
dience to  its  process  and  rules,  protecting  its  officers  and 
jurors  from  wrong,  and  rebuking  interference  with  the 
conduct  of  business.* 

The  general  rule  is  that  the  power  to  punish  for  con- 
tempt is  a  discretionary  one,  and  that  an  appellate  court 
will  not  interfere  except  where  an  abuse  of  discretion  ap- 
pears.* Some  of  the  cases  go  still  further,  and  hold  that 
the  action  of  a  court  in  punishing   for  contempt  is   not 

inson,  19  Wall.  505;  Ex  parte  Terry,  128  U.  S.  289 ;  9  Sup.  Ct.  Rep.  77. 
The  legislature  can  not  take  from  a  constitutional  court  the  power  to 
punish  for  contempt,  since  that  would  make  the  judiciary  subservient 
to  the  legislative  department,  and  violate  the  provision  which  secures 
the  independence  of  the  difTerent  departments  of  government.  The 
legislature  may,  within  limits,  regulate  the  procedure,  but  it  can  not 
by  any  regulation  abridge  or  fetter  the  inherent  power  itself.  The 
counsel  for  the  appellants  are,  therefore,  in  error  in  assuming,  as  they 
do,  that  we  must  look  solely  to  the  statute  to  ascertain  whether  an  act 
does  or  does  not  constitute  a  contempt.  But  if  it  should  be  conceded 
that  the  legislature  may  define  a  contempt,  the  concession  would  avail 
the  appellants  nothing,  for  the  legislature  has  assumed  to  declare 
that  resistance  .to  an  officer  shall  constitute  a  contempt.  We  do  not, 
however,  plant  our  conclusion  upon  the  statute.  We  put  the  authority 
to  punish  a  person  who  wrongfully  resists  the  process  of  one  of  our  cir- 
cuit courts  upon  th^  high  ground  that  it  is  an  inherent  power  originat- 
ing in  the  constitution,  and  by  that  instrument  transmitted  to  the 
courts."     Hawkins  v.  The  State,  125  Ind.  570;  25  N.  E.  Rep.  818,  819. 

•3  Am.  &  Eng.  Enc.  of  Law,  799;  Texas  v.  White,  22  Wall.  157; 
Stimpson  v.  Putnam,  41  Vt.  238. 

-  Brown  v.  Brown,  4  Ind.  627  ;  58  Am.  Dec.  641 ;  In  re  Cheeseman,  49 
N.  J.  Law,  115 ;  6  Atl.  Rep.  513. 

^  Little  V.  State,  90  Ind.  33S ;  4(i  Am.  Rep.  224. 

*  Brown  v.  Brown,  4  Ind.  627  ;  58  Am.  Dec.  641. 


176  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

subject  to  the  review  ot  any  other  court.'  But  the  weight 
of  authority  is  to  the  effect  that  a  proceeding  for  contempt 
is  in  the  nature  of  a  criminal  proceeding,  and  that  a  judg- 
ment or  order  punishing  for  contempt  is  subject  to  review 
on  appeal  or  by  habeas  corpus} 

In  habeas  corpus  proceedings  the  right  of  review  is  in 
some  of  the  cases  confined  to  an  inquiry  into  the  juris- 
diction of  the  court.^  In  others,  in  which  the  right  of 
review  is  maintained,  the  jurisdiction  of  the  superior  court 
is  limited  to  the  right  to  determine,  in  addition  to  the 
question  of  jurisdiction,  whether  the  act  charged,  conced- 
ing it  to  have  been  committed,  was  such  an  act  as  consti- 
tuted a  contempt,  it  being  held  that  the  finding  of  the 
lower  court  that  the  act  was  committed  was  conclusive, 
and  not  subject  to  review.* 

1  State  V.  Tipton,  1  Blkf.  (Ind.)  166;  Kernodle  v.  Cason,  25  Ind.  362; 
Williamson's  Case,  26  Pa.  St.  9  ;  67  Am.  Dec.  374;  Cossart  v.  The  State, 
14  Ark.  539;  State  r.  Galloway,  5  Coldwell  (Tenn.),  326;  98  Am.  Dec. 
404,  414,  note. 

^  Whittem  v.  The  State,  36  Ind.  196,  and  cases  cited ;  Ex  parte  Rowe, 
7  Cal.  176;  Ex  parte  Langdon,  25  Vt.  680;  People  r.  Hackley,  24  N.  Y. 
74;  In  re  Pierce,  44  Wis.  411. 

^  Commonwealth  v.  Lecky,  1  Watts.  Pa.  66;  26  Am.  Dec.  37,  49,  note ; 
Ex  parte  Adams,  25  Miss.  883 ;  59  Am.  Dec.  234. 

*  "  As  a  general  rule,  the  propriety  of  a  commitment  for  contempt  is 
not  examinable  in  any  other  court  than  the  one  by  which  it  was 
awarded.  This  is  especially  true  where  the  proceeding  by  which  it  is 
sought  to  be  questioned  is  a  writ  of  habeas  corpus ;  as  the  question  on 
the  validity  of  the  judgment  then  arises  collaterally,  and  not  by  the 
way  of  review.  The  habeas  corpus  act,  moreover,  declares  that  where 
the  detention  of  the  party  seeking  to  be  discharged  by  habeas  corpus  ap- 
pears to  be  for  any  contempt,  plainly  and  specially  charged  in  the  com- 
mitment, ordered  by  a  court  of  competent  jurisdiction,  he  shall  be  re- 
manded to  the  custody  in  which  he  was  found.  But  this  rule  of  course 
is  subject  to  the  qualification  that  the  conduct  charged  as  constituting 
the  contempt  must  be  such  that  some  degree  of  delinquency  or  misbe- 
havior can  be  predicated  of  it ;  for  if  the  act  be  plainly  indifTerent  or 
meritorious,  or  if  it  be  only  the  assertion  of  the  undoubted  right  of  the 
party,  it  will  not  become  a  criminal  contempt  by  being  adjudged  to  be 
so.  The  question  whether  the  alleged  oflFender  really  committed  the 
act  charged,  will  be  conclusively  determined  by  the  order  or  judgment 
of  the  court;  and  so  with  equivocal  acts,  which  may  be  culpable  or  in- 
nocent according  to  the  circumstances ;  but  where  the  act  is  necessarily 
innocent  or  justifiable,  it  would  be  preposterous  to  hold  it  a  cause  of 


INHERENT    POWERS    OF    COURTS.  177 

There  are  two  kinds  of  contempts,  direct  and  con- 
structive. A  contempt  is  direct  when  committed  in  the 
presence  of  the  court  or  so  near  to  it  as  to  interrupt  its  pro- 
ceedings. Constructive  contempts  are  such  as  are  com- 
mitted, not  in  in  the  presence  of  the  court,  but  tend  b;^ 
their  operation  to  interrupt,  obstruct,  embarrass,  or  pre- 
vent the  due  administration  of  justice.^ 

"With  respect  to  rules  of  court,  they  are  necessary  to  the 
proper  exercise  of  the  functions  of  a  court,  and  have  be- 
come a  very  important  branch  of  the  law  affecting  the 
practice  and  proceedings  of  the  courts.  Especially  does 
this  seem  to  be  so  in  England  under  the  judiciary  acts. 
The  practice  under  those  acts  is  very  largely  regulated  by 
rules  or  orders  of  the  supreme  court  of  judicature.^ 

The  right  may  be  given  and  regulated  by  statute,  but 
exists  as  an  inherent   power  independent  of  positive  law.^ 

There  is  no  limit  to  the  right  of  a  court  1o  make  rules 
for  its  government,  except  that  such  rules  must  be  reason- 
able and  not  in  conflict  with  the  constitution  or  statutes.* 

A  court  can  not  make  and  enforce  a  rule  that  will  de- 
prive a  party  of  a  right  given  him  by  law  or  granting  the 
right  upon  terms  more  onerous  than  those  fixed  by  law.^ 

imprisonment.  Hence,  if  the  refusal  of  Mr.  Hackley,  the  relator,  to 
answer  the  question  propounded  to  him,  was  only  an  assertion  of  a 
right  secured  to  every  person  by  the  constitution,  it  was  illegal  to  com- 
mit him  for  a  contempt ;  and  this  error  was  certainly  reached  by  the 
certiorari,  if  not  examinable  on  the  return  to  the  habeas  corpus.^'  People 
r.  Hackley,  24  N.  Y.  74,  77. 

1  Whittem  v.  The  State,  36  Ind.  196. 

«  Wilson's  Jud.  Acts,  p.  18,  sec.  23 ;  p.  109,  sec.  17. 

'  Shane  r.  McNeill,  76  la.  459 ;  41  N.  W.  Rep.  166. 

*  Gormerly  v.  McGlynu,  84  N.  Y.  284,  Redman  v.  The  State,  28  Ind. 
205 ;  Wyandotte  Rolling  Mill  Co.  v.  Robinson,  34  Mich.  428. 

^  Krutz  c.  Griffith,  68  Ind.  444;  Krutz  v.  Howard,  70  Ind.  174;  People 
V.  McClellan,  31  Cal.  101  ;  Rice  v.  Ehele,  55  N.  Y.  518. 

In  Krutz  r.  Howard,  70  Ind.  174, 177,  the  court  said:  "  The  seventh  clause 
of  section  207  of  the  code  enacts :  '  When  either  party  shall  make  and 
file  an  affidavit  of  the  bias,  prejudice,  or  interest  of  tin-  judge  before  whom 
the  said  cause  is  pending,  the  said  court  shall  grant  a  change  of  venue.' 

"  Under  this  statute,  this  court  has  frequently  decided,  that,  if  the 
affidavit  fulfills  the  requirements  of  the  statute,  the  dutv  to  grant  the 
12 


178  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

Ill  many  of  the  states  the  power  to  make  rules  is  ex- 
pressly given  by  statute,  and  where  such  power  is  limited  by 
statute,  such  limitations  must  be  observed.'  A  rule  of  court 
adopted  under  a  statutory  provision  authorizing  it  becomes 
a  law  binding  upon  the  court  as  well  as  upon  litigants  be- 
fore it.^     And  it  is  held  in  some  of  the  cases  that  so  long 

change  of  venue  is  imperative  upon  the  court.  Witter  r.  Taylor,  7  Ind. 
110;  Mershon  v.  The  State,  44  Ind.  598;  Fisk  v.  The  Patriot  and  Bark- 
works  Turnpike  Co.,  54  Ind.  479 ;  Duggins  v.  The  State,  66  Ind.  350 ; 
Krutz  V.  Griffith,  68  Ind.  444. 

"  That  the  affidavit  complies  with  the  statute  in  this  case,  as  to  the 
affiant,  is  not  questioned.  Was  it  necessary  that  it  should  comply  with 
the  rule  of  court  ?  Courts  have  the  power,  and  it  is  their  duty,  to  adopt 
rules*  for  conducting  the  business  therein,  not  repugnant  to  the  laws  of 
the  state.  Is  this  rule  of  the  court  repugnant  to  the  laws  of  the  state? 
We  think  it  is.  By  the  law,  the  party  need  state  only  the  bias,  preju- 
dice, or  interest  of  the  judge  before  whom  the  cause  is  pending,  to  en- 
title him  to  a  change  of  venue.  By  the  rule  of  court,  in  addition  to  one 
of  these,  the  affiant,  being  a  defendant,  is  required  to  state  that  he  is 
informed  and  believes  he  has  a  good  defense,  and  in  general  terms 
to  state  the  character  of  the  defense,  and  also  that  the  application  is 
not  made  for  delay.  W^e  do  not  see  what  this  rule  has  to  do  with 
conducting  the  business  of  the  court.  It  does  not  relate  to  simpli- 
fying or  expediting  the  proceedings,  or  presenting  distinctly  the  points 
in  issue,  or  diminishing  costs,  or  in  remedying  any  imperfections  that 
exist  in  the  practice  ;  it  simply  adds  and  is  repugnant  to  the  law.  The 
court  can  not  add  to  or  take  from  the  law  '  one  jot  or  one  tittle.' 
It  must  adjudicate  and  administer  the  law  as  it  is.  Tlie  court  erred  in 
overruling  the  motion  for  a  change  of  venue." 

'  Gormerly  r.  McGlynn,  84  N.  Y.  284;  2  Work's  Ind.  Prac.  and  PL, 
sec.  1273. 

^  4  Am.  and  Eng.  Enc.  of  Law,  451  ;  Thompson  v.  Hatch,  3  Pick. 
(Mass.)  512. 

"But  a  rule  of  the  court  thus  authorized  and  made,  has  the  force  of 
law,  and  is  binding  upon  the  court,  as  well  as  upon  parties  to  an  action, 
and  can  not  be  dispensed  with  to  suit  the  circumstances  of  any  particu- 
lar case.  In  the  case  before  us,  the  plea  was  allowed  to  be  filed  on  the 
fifth  day  of  the  term,  although  the  rule  allows  but  four  days  for  that 
purpose.  The  circumstances  were  such  as  would  justify  that  order  of 
the  court,  if  it  had  had  power  to  pass  it;  bufwe  are  satisfied  that  no 
one  judge  of  the  court  of  common  picas,  or  of  this  court,  has  authority 
to  dispense  with  rules  deliberately  made  and  promulgated,  on  account 
of  the  hardship  of  any  particular  case,  any  more  than  he  would  have 
authority  to  dispense  with  any  requisition  of  the  legislature  itself.  Tlu^ 
courts  may  rescind  or  repeal  their  rules,  without  doubt,  or  in  establish- 
ing them,  may  reserve  the  exercise  of  discretion  for  jiaWicular  cases. 
But  the  rule  once  made  without  any  such  qualification,  must  be  applied 


INHERENT  POWERS  OF  COURTS.  179 

as  a  rule  of  court  remains  unrepealed  it  can  not  be  dis- 
pensed with  or  suspended  in  a  particular  case.^  But  the 
general  rule  on  the  subject  is  that  a  court  has  the  power, 
at  all  times,  to  suspend  its  own  rules,  or  to  except  particu- 
lar cases  from  their  operation  whenever  the  purposes  of 
justice  require  it.^  This  is  a  power,  how^ever,  that  should 
be  rarely  exercised,  and  only  for  the  purpose  of  avoiding 
injustice,  as  the  premanency  of  rules  of  court,  and  their 
uniform  enforcement  and  application  are  necessary  to  give 
uniformity  to  the  practice  and  place  all  litigants  upon  an 
equal  footing.*  Whether  a  rule  shall  be  suspended  or  not 
is  a  matter  of  discretion  with  the  court,  and  can  not  be 
claimed  as  a  right.*  A  court  may,  by  rule,  supply  an  omis- 
sion in  the  law  as  to  the  practice  affecting  the  manner  of 
bringing  cases  before  it.^  But  where  a  statutory  mode  of 
procedure  is  provided  a  court  can  not,  by  rule,  prescribe  a 
different  mode.*^  Courts  have  full  power  to  construe  their 
own  rules.'  And  in  some  cases  it  is  held  that  an  appeal 
will  not  lie  from  an  order  of  a  court  that  gives  a  construc- 
tion to  its  rules.  This  is  no  doubt  true  where  the  question 
is  one  of  discretion,  and  the  rule  affects  merely  the  time 
when  a  thing  shall  be  done,  or  the  like,  but  it  can  not  be 
true  that  a  court  may,  in  all  cases,  disregard,  misconstrue, 
or  violate  its  own  rules,  and  that  no  appeal  will  lie  from 
its  action.^     But  unless  it  clearly  appears,  on  appeal,  that 

to  all  cases  which  come  within  it,  until  it  is  repealed  by  the  authority 
which  made  it."     Thompson  r.  Hatch,  3  Pick.  (Mass.)  512. 

'  Thompson  v.  Hatch,  3  Pick.  512. 

'^  United  States  v.  Breitling,  20  How.  252  ;  Clark  v.  Brooks,  2(i  How. 
Prac.  285;  Martine  r.  Lowenstein,  68  N.  Y.  456 ;  Manhattan  Life  Ins. 
Co.  V.  Francisco,  17  Wall.  672;  Symons  v.  Bunnell,  20  Pac.  Rep.  859- 
Sheldon  i:  Risedorph,  23  Minn.  518;  Pickett  v.  Wallace,  54  Cal.  147. 

3  Walcott  V.  Scheuck,  23  How.  Prac.  385. 

*  Manhattan  Life  Ins.  Co.  v.  Francisco,  17  Wall.  672. 

*  Pieper  v.  Centinella  Land  Co.,  56  Cal.  173. 

^  Sommers  v.  Sommers,  81  Cal.  608;  22  Pac.  Rep.  967;  AVyandotte 
Rolling  Mills  Co.  v.  Robinson,  34  Mich.  427  ;  Angel  v.  Plume  i  Atwootl 
Man.  Co.,  73  111.  412. 

'  Martine  r.  Lowensteiu.  68  N.  Y.  456 ;  Bair  r.  Huburtt,  139  Pa.  St.  96; 
21  Atl.  Rep.  210. 

«  Thompson  v.  Hatch,  3  Pick.  512;  ex  parte  Whitney,  13  Pet.  404,  407; 


180  GENERAL    PRINCIPLES    AFFECTING   JURISDICTION. 

a  rule  of  the  court  below  has  been  violated,  the  construc- 
tion put  upon  it  by  the  latter  court  will  not  be  reviewed.' 
A  court  may  establish  a  rule  for  its  government  by  a  long 
and  continuous  acquiescence  in  a  particular  course  of 
practice  without  having  any  written  rule  on  the  subject.^ 
A  court  can  not  be  compelled,  by  mandamus,  to  comply 
with  the  rules  of  the  court,  although  such  rules  are  pre- 
scribed by  a  higher  court.^ 

While  the  right  to  grant  new  trials  is  inherent  in  every 
court  of  general  jurisdiction,  the  law-making  power  may 
control  the  right  and  prescribe  when  and  how  appli- 
cations therefor  may  be  made,  and  the  terms  upon  which 
new  trials  may  be  granted,  and  these  limitations  are 
binding  on  the  courts.*  But  statutory  provisions  author- 
izing courts  of  general  jurisdiction  to  grant  new  trials 
are  regarded  as  limitations  of,  and  not  grants  of  juris- 
diction. 

It  has  been  doubted,  in  some  cases,  whether  inferior 
courts  possess  inherent  power  to  grant  new  trials.^  And 
in  others  it  has  been  held  that  they  have  no  such  power  un- 
less expressly  conferred  upon  them  by  statute.*  These  in- 
herent powers  are  held  in  some  cases  not  to  belong  to  in- 
ferior courts.'''  And  the  question  whether  a  court  is  one  of 
superior  or  inferior  jurisdiction  is  sometimes  made  to  turn 
u})on  the  other  question  whether  it  has  inherent  power  to 
punish  for  contempt.®     But  usually  the  dividing  line  is 

Bair  v.  Hubartt,  139  Pa.  St.  96;  21  Atl.  Rep.  210;  Nevin  v.  Morrison.  18 
Atl.  Rep.  636. 

'  Nevin  v.  Morrison,  18  Atl.  Rep.  636. 

''  FuUerton  v.  Bank  of  the  United  States,  1  Pet.  604,  612. 

=*  Ex  parte  Whitney,  13  Pet.  404,  407. 

*  Fox  V.  Meacham,  6  Neb.  530;  Commonwealth  v.  McElhaney,  111 
Mass.  439. 

*  Commonwealth  v.  McElhaney,  111  Mass.  439. 

*  People  <'.  Sessions  of  Chenango,  2  Caine's  Cases  (N.  Y.),  318;  Foist 
V.  Coppiu,  35  Ind.  471 ;  Vogel  r.  Lawrenceburg  Tobacco  Man.  Co.,  49 
Ind.  218;  Brown  v.  Goble,  97  Ind.  86. 

7  In  re  Hawley,  104  N.  Y.  250 ;  10  N.  E.  Rep.  352,  357 ;  Doctor  r.  Hart- 
man,  74  Ind.  221,  225 ;  Foist  v.  Coppin,  35  Ind.  471 ;  In  re  Mason,  43 
Fed.  Rep.  510,  515;  Commonwealth  v.  McElhaney,  111  Mass.  439. 

*  Ante,  sees.  6,  7. 


POWERS    OF    ILLEGAL    AND    DE  FACTO    COURT?.  181 

drawn  between  courts  of  record  and  courts  not  of  record.^ 
'Later  decisions  show  a  tendency  to  extend  the  right  to  ex- 
ercise these  powers  to  all  courts,  at  least  with  respect  to 
contempts.^ 

As  to  inferior  courts,  it  is  sometimes  held  that  they  have 
•  power  to  punish  for  a  direct  contempt,  but  not  for  a  con- 
structive one.^  But  the  better  rule  is  that  all  courts  have 
the  power  to  punish  for  contempt  independent  of  statu- 
tory authority.  There  is  no  good  reason  for  holding  that 
a  court  which  needs  protection,  by  the  exercise  of  the 
power,  because  of  its  inferiority  and  weakness,  should  be 
denied  the  authority.^  The  power  is  confined  to  courts, 
and  can  not  be  exercised  by  executive  or  ministerial 
officers.'' 

A  court  has  unlimited  power  to  amend  its  records  to 
conform  to  the  facts.  But,  as  to  matters  of  substance,  the 
power  to  amend  is  generally  held  to  cease  with  the  term 
at  which  the  record  is  made.^ 

In  case  of  an  appeal,  it  is  held  that  the  court  below  has 
power  to  amend  its  records  at  any  time  before  final  decree 
in  the  appellate  court.^ 

28.  Powers  of  illegal  and  de  facto  courts. — The  acts 
of  an  illegal  court,  or  one  not  authorized  by  law,  are  void.^ 
But  there  is  a  marked  distinction,  in  this  respect,  between 
a  court  and  the  judge  of  a  court.  If  there  be  a  legally 
constituted  court,  but  the  person  claiming  to  be  the  judge 
thereof  has  not  been   legally  elected  or  appointed  as  such 

^  Ante,  sec.  7 ;  In  re  Mason,  43  Fed.  Rep.  510,  515. 

'  In  re  Monroe,  46  Fed.  Rep.  52;  Clark  v.  People,  Breese  (111.),  340; 
12  Am.  Dec.  177,  180,  note;  Rottman  v.  Bartling,  37  N.  W.  Rep.  668; 
Wyatt  V.  People,  28  Pac.  Rep.  961. 

^  Clarke  v.  People,  12  Am.  Dec.  181,  note. 

*  Langensberg  v.  Decker,  31  N.  E.  Rep.  190. 

*  Territory  v.  Christenson,  31  N.  W.  Rep.  855,  note ;  Sugg  i'.  Thornton, 
73  Tex.  666;  9  S.  W.  Rep.  145;  Harris  v.  State,  24  Neb.  803;  40  N.  W. 
Rep.  317. 

«  Ex  parte  Henderson,  84  Ala.  36;  4  South.  Rep.  284. 
'People   V.  Toal,  85   Cal.  333;  24   Pac    Rep.  603;  Rose  v.  Himely,  4 
Crarich,  241,  267. 


182  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

judge,  or  is  incompetent  for  any  other  reason  to  hold  the 
court,  his  acts  may  be  valid  as  a  de  facto  judge  the  same 
as  any  other  de  facto  officer.'  But,  if  one  is  assuming  to 
act  as  the  judge  of  a  court  that  has  no  existence,  whether 
he  has  been  duly  or  regularly  elected  or  appointed  to  the 
position  or  not,  is  immaterial.  His  acts  are  absolutely 
void.^  It  is  not  sufficient  that  the  individual  holding  the 
court  is  in  fact  acting  as  judge.  It  must  appear  that  he 
is  holding  under  color  of  office.  It  is  held,  therefore,  that, 
where  an  attorney  assumes  to  act  as  judge  of  the  court 
under  a  statute  attempting  to  authorize  him  to  do  so,  his 
acts  are  not  the  acts  of  a  court,  and  are  wholly  void.^ 
But,  in  some  of  the  states,  attorneys  are  authorized,  under 
certain  conditions,  to  act  as  judges,  temporarily,  and  their 
acts  are  held  to  be  valid.* 

It  is  said  that,  "  where  a  court  or  office  is  established  by 
a  legislative  act,  apparently  valid,  and  the  court  has  gone 

1  People  V.  Sassovich,  29  Cal.  480,  485  ;  People  v.  Burbank,  12  Cal.  378, 
386;  Wilcox  v.  Smith,  5  Wend.  231 ;  21  Am.  Dec.  213,  217,  note;  Moses 
V.  Julian,  45  N.  H.  52 ;  84  Am.  Dec.  114,  133,  note  ;  People  v.  Terry,  108 
N.  Y.  1  ;  14  N.  E.  Rep.  815;  State  v.  Carroll,  38  Conn.  449;  9  Am.  Rep. 
409  ;  Sheehan's  Case,  122  Mass.  445 ;  23  Am.  Rep.  374. 

2  People  V.  Toal,  85  Cal.  333;  24  Pac.  Rep.  603 ;  The  Chicago  &  N.  W. 
Ry.  Co.  V.  Langlade  Co.,  56  Wis.  614,  627 ;  14  N.  W.  Rep.  844. 

"  But,  conceding  that  the  police  court  of  Los  Angeles  was  not  legally 
established,  it  is  further  contended  that  the  fact  can  not  avail  the  appel- 
lant in  this  case  ;  that,  whether  it  was  or  not,  the  pretended  judge  thereof 
was  a  de  facto  judge,  and  his  right  to  the  office,  or  his  jjower  and  juris- 
diction, can  not  be  questioned  in  this  collateral  way,  but  must  be  raised 
by  a  direct  action  for  that  purpose.  We  think  this  point  would  be  well 
taken  if  this  were  an  attempt  to  test  the  right  of  some  one  to  hold  an 
existing  office.  (Hull  v.  Superior  Court,  63  Cal.  174-179;  Buckner  r. 
Veuve,  63  Cal.  304;  Fraser  v.  Freelon,  53  Cal.  647.)  But  the  question 
presented  here  is  not  as  to  the  right  of  a  particular  person  to  hold  an 
existing  office.  There  can  not  be  a  de  facto  judge  of  a  court  that  has  no 
existence."    People  v.  Toal,  85  Cal.  333,  338  ;  24  Pac.  Rep.  603. 

"An  officer  de  facto  is  one  who  comes  into  a  legal  and  constitutional  office 
by  color  of  a  legal  appointment  or  election  to  that  office."  People  r. 
White,  24  Wend.  (N.  Y.)  520,  539. 

3  Van  Slyke  v.  Trempealeau  F.  M.  F.  Ins.  Co.,  39  Wis.  390;  20  Am. 
Rep.  50. 

•'Rogers  v.  Beauchamp,  102  Ind.  33;  1  N.  E.  Rep.  185;  Kenney  v. 
Phillipy,  91  Ind.  511. 


CONSTITUTIONAL    LIMITATIONS    OF    JURISDICTION.  183 

into  operation  or  the  office  is  filled  and  exercised  under 
the  act,  it  is  a  de  facto  court  or  office,  and  its  legality  can 
not  be  called  in  question  collaterally,  or  except  in  a  direct 
proceeding  by  the  state  for  state  purposes." '  But  it  is 
believed  that  this  doctrine,  so  far,  at  least,  as  it  applies  to. 
courts,  can  not  be  sustained  by  reason  or  authority.^ 

29.  Constitutional  limitations  of  jurisdiction. — Under 
the  constitutions  of  the  United  States  and  of  the  several 
states,  the  government  of  each  is  divided  into  difi:erent  de- 
partments, neither  of  which  can  encroach  upon  or  exercise 
the  powers  and  functions  of  the  other.^  The  "  legislature 
makes,  the  executive  executes,  and  the  judiciary  construes 
the  law."^  And,  where  one  of  these  departments  of  gov- 
ernment assumes  to  perform  the  duties,  or  exercise  the 
powers,  of  another  department,  or  to  control  its  action,  its 
acts  are  void.*  So,  if  one  department  of  government  at- 
tempts to,  or  does,  interfere  with  or  obstruct  another  in 
the  performance  of  its  duties,  it  may  be  prevented  from  so 
interfering.  But  this  doctrine  does  not  prevent  the  judi- 
cial department  of  government  from  enforcing  the  per- 
formance of  merely  ministerial  duties  by  officers  of  other 
departments.^  But  the  jurisdiction  of  the  courts  to  en- 
force or  control  action  on  the  part  of  officers  of  other  de- 
partments does  not  extend  to  acts  calling  for  the  exercise 
of  judgment  or  discretion,  or  to  executive  or  political  acts.® 
The  principle  that  authorizes  a  court  to  enforce  the  per- 

^  Kelly  V.  Bemis,  64  Am.  Dec.  54,  note. 

2  People?-.  Nelson,  1.3?,  III.  565;  27  N.  E.  Rep.  217,  226;  Cooley's  Const. 
Lim.,  ■•  pp.  87-93;  Anderson's  Die.  of  Law,  342;  State  v.  Hyde,  121  Ind. 
20  ;  22  N.  E.  Rep.  644. 

^  Wayman  v.  Southard,  10  Wheat.  1,  46. 

*  Baggs'  Appeal,  43  Pa.  St.  512;  82  Am.  Dec.  583;  Miles  v.  Bradford,  22 
Md.  170:  85  Am.  Dec.  643. 

'"  United  States  v.  Guthrie,  17  How.  284;  State  r.  Doyle,  40  Wis.  175, 
188;  22  Am.  Rep.  692 ;  Decatur  v.  Paulding,  14  Pet.  497,  514. 

"Ex  parte  Echols,  39  Ala.  698;  88  Am.  Dec.  749;  United  States  v. 
Guthrie,  17  How.  284;  Brashaer  v.  Mason,  6  How.  92,  97;  ]\Iiles  r.  Brad- 
ford, 22  Md.  170;  85  Am.  Dec.  643;  Decatur  r.  Paulding,  14  IVt.  497,  514; 
March  r.  The  State,  44  Tex.  64;  Marbury  v.  :Madi.son.  1  ("rnnch.  '37; 
Jones  r.  United  States,  137  U.  S.  202;  11  Sup.  Ct.  Rep.  89. 


184  GENERAL    PRINCIPLEf^    AFFECTING    JURISDICTION. 

formance  of  a  ministerial  act  gives  like  authority  to  pre- 
vent a  violation  of  a  ministerial  duty.* 

The  extent  to  whicii  the  courts  may  go  in  controlling 
action  on  the  part  of  officers  of  other  departments  of  gov- 
ernment seems  to  be  very  thoroughly  determined.  The  au- 
thority only  extends  to  ministerial  acts  not  calling  for  tin- 
exercise  of  judgment  or  discretion.  But  the  great  diffi 
culty  has  been  to  distinguish  between  acts  purely  minis- 
terial and  such  as  are  judicial,  political,  executive,  or  dis- 
cretionary in  their  nature.  It  is  impossible  to  lay  down 
any  general  rule  that  would  distinguish  these  different 
powers  with  sufficient  accuracy  to  be  relied  upon.  This 
has  been  attempted  by  the  courts  in  many  instances,  but 
the  eflbrt  is  usually  accompanied  by  an  acknowledgment 
that  general  rules  or  delinitions  are  not  to  be  relied  upon.^ 

1  Board  of  Liquidation  v.  McComb,  92  U.  S.  531,  541. 

''  Decatur  v.  Paulding,  14  Pet.  497,  514,  518 ;  Bledsoe  v.  Int.  R.  R.  Co., 
40  Tex.  537,  556. 

"  It  is  unnecessary  to  give  an  account  of  the  origin  and  use  of  the  writ 
of  mandamus  in  England.  It  has  been  more  or  less  employed  in  all  the 
courts  of  America  for  many  years,  and  the  principles  applicable  to  its 
use  have  been  much  discussed.  It  is  sufficient  to  say  that  the  proceed- 
ing by  mandamus  has  for  its  object  the  enforcement  of  a  duty,  and  that 
it  has  ever  been  regarded  as  an  extraordinary  remedy,  subject  to  im- 
portant restrictions.  A  mandamus  will  issue  to  an  officer  of  the  govern- 
ment only  when  the  duty  to  be  performed  is  ministerial  in  its  charac- 
ter ;  and,  when  a  duty  is  imposed  upon  the  officer  requiring  the  exer- 
cise of  judgment  or  discretion,  a  mandamus  will  not  lie.  (5  Texas,  478; 
12  Pet.  R.  524,  609 ;  7  Cr.  R.  .504  ;  6  Wheat.  59S;  6  How.  92.) 

"  It  was  said  by  Justice  Wheeler :  '  The  distinction  between  ministe- 
rial and  judicial  and  other  official  acts  seems  to  be  that,  when  the  law^ 
prescribes  and  defines  the  duty  to  be  performed  with  such  precision  and 
certainty  as  to  leave  nothing  to  the  exercise  of  discretion  or  judgment, 
the  act  is  ministerial ;  but,  when  the  act  to  be  done  involves  the  exer- 
cise of  discretion  or  judgment  in  determining  whether  the  duty  exists, 
it  is  not  to  be  deemed  merely  ministerial.'     (5  Texas,  479.) 

"This,  perhaps,  defines  the  rule  as  clearly  as  it  can  be  done,  yet  it 
must  be  admitted  that  the  use  of  terms  handed  down  from  a  country 
where  a  different  government  and  different  laws  obtain,  is  calculated  to 
make  it  difficult  of  application  to  particular  cases.  The  word  '  ministe- 
rial' has  reference  generally  to  an  act  done  under  authority  of  a  supe- 
rior; and  in  this  sense  it  could  never  apply  to  the  chief  executive  with 
respect  to  any  thing  required  by  the  legislative  authority.  The  word 
'  discretion  '  strictly  applies  to  but  few  acts.     The  governor  has  a  discre- 


II 


CONSTITUTIONAL    LIMITATIONS    OF    JURISDICTION.  185 

Yet,  while  these  general  rules  and  definitions  can  not 
detremine  in  all  cases  whether  an  act  is  ministerial,  po- 
litical, executive,  or  judicial,  thej  aid  us  materially  in  ar- 
riving at  a  proper  conclusion  in  any  particular  case. 

"A  ministerial  act  is  one  which  a  person  performs  in  a 
given  state  of  facts,  in  a  prescribed  manner,  in  obedience  to 
the  mandate  of  legal  authority,  and  without  regard  to,  or 
the  exercise  of,  his  own  judgment  upon  the  propriety  of 
the  act  to  be  done."  ^ 

"A  ministerial  duty,  the  performance  of  which  may  in 
proper  cases  be  required  of  the  head  of  a  department  of 
government,  by  judicial  process,  is  one  in  respect  to  which 
nothing  is  left  to  discretion.  It  is  a  simple,  detinite  duty, 
arising  under  conditions  admitted  or  proved  to  exist  and 
imposed  by  law."  ^ 

A  judicial  act  is  defined  to  be   "an  act  performed  by  a 

tion  in  the  exercise  of  the  pardoning  power,  and  sometimes  a  court  in 
determining  the  amount  of  a  fine ;  but  the  instances  are  few  indeed 
where  an  officer,  executive  or  judicial,  in  exercising  the  functions  of  his 
office,  is  left  to  act  solely  at  his  discretion.  'The  discretion  of  a  judge 
is  said  to  be  the  law  of  tyrants.'  (Bouvier.)  So,  also,  the  word  'judg- 
ment' most  generally  has  reference  to  some  determination  by  a  judicial 
tribunal.  It  is  evident,  then,  that  these  words  are  not  to  be  used  in  a 
restricted  sense.  Where  the  line  of  demarkation  lies  between  a  minis- 
terial act  and  an  act  involving  the  exercise  of  judgment,  is  not  always 
easy  to  determine.  In  the  case  of  Decatur  v.  Paulding,  14  Peters,  518, 
Justice  Catron  said :  'Any  sensible  distinction  applicable  to  all  cases  it 
is  impossible  to  lay  down;  such  are  the  refinements  and  mere  verbal 
distinctions  as  to  leave  an  almost  unlimited  discretion  to  the  court. 
How  easily  the  doctrine  may  be  pushed  and  widened  to  any  extent,  the 
case  furnishes  an  excellent  illustration.  The  process  of  reasoning 
adopted  by  those  who  maintain  the  power  to  assume  jurisdiction  is 
that,  where  a  right  exists  by  law  to  demand  money  of  an  officer,  and  he 
refuses  to  pay,  the  court  can  enforce  the  right  by  mandamus,  and,  to  as- 
certain the  existence  of  the  right,  it  is  the  duty  of  the  court  to  construe 
the  law ;  and  if,  by  such  construction,  the  right  is  found  and  the  refusal 
to  pay  ascertained  to  have  been  a  mistake,  then  the  officer  will  be  co, 
erced  to  pay  out  the  money  as  a  ministerial  duty.'  This  reasoning  is 
then  pronounced  an  assumption  which  can  not  be  recognized."  Bledsoe 
V.  Int.  R.  R.  Co.,  40  Tex.  550. 

•  Anderson's  Die.  of  Law,  077  ;  Flournoy  v.  Jeffersonville,  17  Ind.  109  ; 
79  Am.  Dec.  408. 

Ud. 


186 


GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 


court  touching  the  rights  of  parties,  or  property,  brought 
before  it  bj  voluntary  appearance  or  by  the  prior  action  of 
ministerial  officers."  * 

Legislative  power  is  the  power  to  enact  laws  or  to  de- 
clare what  the  law  shall  be ;'  to  enact,  amend,  or  repeal 
laws.^  Laws  are  made  by  the  legislature  and  applied  by  the 
courts.* 

It  is  the  duty  of  the  executive  department  of  the  govern- 
ment to  enforce  the  laws.  If  the  acts  to  be  done  in  carry- 
ing the  law  into  effect  require  the  exercise  of  judgment  or 

'  Flourney  v.  Jeffersonville,  17  Ind.  169,  172  ;  79  Am.  Dec.  468  ;  Pen- 
nington V.  Straight,  54  Ind.  376,  377  ;  Smith  v.  Strother,  68  Cal.  194 ;  8 
Pac.  Rep.  852. 

^  Anderson's  Law  Die.  611 ;  Sinking  Fund  Cases,  99  U.  S.  761. 

•'  Cooley  Const.  Lim.  *pp.  90-92. 

^  Merrill  v.  Sherburne,  1  N.  H.  204  ;  8  Am.  Dec.  52  ;  Smith  v.  Strother, 
68  Cal.  194  ;  8  Pac.  Rep.  852. 

"  This  leads  to  the  inquiry,  what  is  legislative  power  ?  And  upon  that 
subject  there  is  an  abundance  of  authority.  The  word  '  legislative  '  is 
defined  by  Worcester  as  follows:  'That  which  makes  or  enacts  laws; 
law-making ;  legislative  power  ;  of  or  pertaining  to  legislation,  or  to  a 
legislature — as,  legislative  proceedings.'  '  Legislative  '  is  defined  by  Zell 
as  follows:  '  Making,  giving,  or  enacting  laws;  relating  or  pertaining  to 
the  passing  of  laws.'  Webster  defines  'legislative'  as  follows:  '  Giv- 
ing or  en-Bcting  laws ;  as,  a  legislative  body.  Pertaining  to  the  enact- 
ment of  laws ;  suitable  to  laws ;  as,  the  legislative  style.  Done  by  enact- 
ing ;  as,  a  legislative  act.'  Wharton,  in  his  lexicon,  defines  '  legislation  ' 
as  follows ;  '  The  act  of  giving  or  enacting  laws ;  '  legislature,'  the  power 
to  make  laws.'  Abbott,  in  his  Law  Dictionary,  under  the  head  '  legis- 
late,' has  the  following :  '  To  make  laws.  '  Legislature,'  the  body  of  per- 
sons in  the  state  clothed  with  the  authority  to  make  laws,  '  Legislative 
power,'  that  one  of  the  three  great  departments  into  which  the  powers 
of  government  are  distributed,  legislative,  executive,  and  judicial,  which 
is  concerned  with  enacting  or  establishing,  and,  incidentally,  with  re- 
pealing, laws.'  We  find  the  following  in  Sinking  Fund  Cases,  99  U.  S. 
761,  speaking  of  the  judicial  and  legislative  departments  :  '  The  one  de- 
termines what  the  law  is  and  what  the  rights  of  parties  are  with  refer- 
ence to  transactions  already  had ;  the  other  prescribes  what  the  law 
shall  be  in  future  f'ases  arising  under  it.'  Legislative  power  is  the 
power  to  enact,  amend,  or  repeal  laws.  Railroad  Co.  v.  Ge'iger,  supra; 
Cooley's  Const.  Lim.  90;  Hawkins  v.  Governor,  1  Ark.  570;  Wayman  r. 
Southard,  10  Wheat.  46;  Greenough  v.  Greenough,  11  Pa.  St.  494." 
City  of  Evansville  v.  State,  118  Ind.  426;  21  N.  E.  Rep.  267,  272. 


CONSTITUTIONAL    LIMITATIONS    OF    JURISDICTION.  187 

discretion  they  are  executive  or  political,  and   not  minis- 
terial, and  can  not  be  controlled  by  the  courts.' 

It  makes  no  difterence  by  whom  an  act  is  performed, 
whether  by  a  ministerial,  executive,  or  judicial  officer,  in 
determining  whether  it  is  ministerial  or  not.  The  dis- 
tinction depends  upon  the  nature  of  the  act  done  or  to  be 
done,  and  not  upon  the  character  of  the  officer  by  whom 
it  is  to  be  performed.^ 

'  Mississippi  v.  Johnson,  4  Wall.  475 ;  The  State  v.  Governor,  5  Ohio. 
St.  528,  534;  .Jones  v.  United  States,  137  U.  S.  202;  11  Sup.  Ct.  Rep.  SO. 

"  The  single  point  which  requires  consideration  is  this:  can  the  pres- 
ident be  restrained  by  injunction  from  carrjnng  into  effect  an  act  of  con- 
gress alleged  to  be  unconstitutional?  It  is  assumed  by  the  counsel  for 
the  State  of  Mississippi  that  the  president,  in  the  execution  of  the  recon- 
struction acts,  is  required  to  perform  a  mere  ministerial  duty.  In  this 
assumption  there  is,  we  think,  a  confounding  of  the  terms  '  ministerial ' 
and  '  executive,'  w'hich  are  by  no  means  equivalent  in  import.  A  min- 
isterial duty,  the  performance  of  which  may,  in  proper  cases,  be  required 
of  the  head  of  a  department,  by  judicial  process,  is  one  in  respect  to 
which  nothing  is  left  to  discretion.  It  is  a  simple,  definite  duty,  arising 
under  conditions  admitted  or  proved  to  exist,  and  imposed  by  law.  .  .  . 
Very  different  is  the  duty  of  the  president,  in  the  exercise  of  the 
power,  to  see  that  the  laws  are  faithfully  executed,  and,  among  these 
laws,  the  acts  named  in  the  bill.  By  the  first  of  these  acts,  he  is  re- 
quired to  assign  generals  to  command  in  the  several  military  districts, 
and  to  detail  sufficient  military  force  to  enable  such  officers  to  discharge 
their  duties  under  the  law.  By  the  supplementary  act,  other  duties  are 
imposed  on  the  several  commanding  generals,  and  these  duties  must 
necessarily  be  performed  under  the  supervision  of  the  president  as 
commander-in-chief.  The  duty  thus  imposed  on  the  president  is  in  no 
just  sense  ministerial.  It  is  purely  executive  and  political."  Missis- 
sippi r.  Johnson,  4  Wall.  475. 

^  Kendall  v.  Stokes,  3  How.  87 ;  Marbury  i\  Madison,  1  Cranch,  137, 
1()4;  The  State  r.  Governor,  5  Ohio  St.  528 ;  Chamberlain  r.  Sibley,  4 
]\Iinn.  309. 

"Can  the  chief  executive  officer  of  the  state  be  directed  or  con- 
trolled in  his  official  action  by  proceedings  in  mandamus  f  It  is 
claimed,  on  the  part  of  the  defense,  that,  inasmuch  as  the  government 
is  by  the  constitution  divided  into  the  three  separate  and  co-ordinate  de- 
partments, the  legislative,  the  executive,  and  the  judicial,  and  inas- 
much as  each  department  has  the  right  to  judge  of  the  constitution 
and  laws  for  itself,  and  each  officer  is  responsible  for  an  abuse  or  usur- 
pation in  the  mode  pointed  out  in  the  constitution,  it  necessarily  follows 
that  each  department  must  be  supreme  within  the  scope  of  its  powers, 


188  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

The  judicial  power  of  the  government  may  so  far  regu- 

and  neither  subject  to  the  control  of  the  other  for  the  manner  in  which 
it  performs,  nor  its  failure  to  perform,  either  its  legal  or  constitutional 
duties.  This  argument  is  founded  on  theory  rather  than  reality.  That 
each  of  these  co-ordinate  departments  has  duties  to  perform  in  which 
it  is  not  subject  to  the  controlling  or  directing  authority  of  either  of  the 
others,  must  be  conceded.  But  this  independence  arises  not  from  the 
grade  of  the  officer  performing  the  duties,  but  the  nature  of  the  author- 
ity exercised.  Under  our  system  of  government,  no  officer  is  placed 
above  the  restraining  authority  of  the  law-,  which  is  truly  said  to  be 
universal  in  its  behests — '  all  paying  it  homage,  the  least  as  feeling  its 
care,  and  the  greatest  as  not  exempt  from  its  power.'  And  it  is  only 
where  the  law  has  authorized  it,  that  the  restraining  power  of  one  of 
these  co-ordinate  departments  can  be  brought  to  operate  as  a  check 
upon  one  of  the  others.  The  iudicial  power  can  not  interpose  and  di- 
rect in  regard  to  the  performance  of  an  official  act  which  rests  in  the  dis- 
cretion of  any  officer,  whether  executive,  legislative,  or  judicial.  In 
Marbury  v.  Madison,  1  Cranch,  170,  Chief-Justice  Marshall  said  :  '  It  is 
not  by  the  office  of  the  person  to  whom  the  writ  is  directed,  but  the  na- 
ture of  the  thing  to  be  done,  that  the  propriety  or  impropriety  of  issuing  a 
mandamus  is  to  be  determined.' 

"  The  constitutional  provision  declaring  that  '  the  supreme  executive 
power  of  this  state  shall  be  vested  in  the  governor,'  clothes  the  governor 
with  important  political  powers,  in  the  exercise  of  which  he  uses  his 
own  judgment  or  discretion,  and  in  regard  to  which  his  determinations 
are  conclusive.  But  there  is  nothing  in  the  nature  of  the  chief  execu- 
tive office  of  this  state  which  prevents  the  performance  of  some  duties 
merely  ministerial  being  enjoined  on  the  governor.  While  the  authority 
of  the  governor  is  supreme  in  the  exercise  of  his  political  and  executive 
functions  which  depend  on  the  exercise  of  his  own  judgment  or  discre- 
tion, the  authority  of  the  judiciary  of  the  state  is  supreme  in  the  deter- 
mination of  all  legal  questions  involved  in  any  matter  judicially  brought 
before  it.  Although  the  state  can  not  be  sued,  there  is  nothing  in  the 
nature  of  the  office  of  governor  which  prevents  the  prosecution  of  a 
suit  against  the  person  engaged  in  discharge  of  its  duties.  This  is  fully 
sustained  by  the  analogy  of  the  doctrine  of  the  Supreme  Court  of  the 
United  States,  in  the  case  of  Marbury  v.  Madison,  1  Cranch,  170."  State 
V.  Governor,  5  Ohio  St.  534. 

"  This  court  will  not  undertake  to  compel  the  governor  of  the  state 
to  the  performance  of  any  duty  devolving  upon  him  as  the  chief  ex- 
ecutive, and  properly  pertaining  to  such  office.  In  all  such  matters  the 
executive  is  of  necessity  independent  of  the  judiciary.  But  when 
some  official  act,  not  necessarily  pertaining  to  the  duties  of  the  execu- 
tive of  the  state,  and  which  might  be  performed  as  well  by  one  offi(!er 
as  another,  is  directed  by  law  to  be  done,  then  any  person  who  clearly 
shows  himself  entitled  to  its  performance,  and  has  no  other  adequate 
remedy    may  have  a  writ  of  mandamus  against  such  officer,  even  al- 


CONSTITUTIONAL    LIMITATIONS    OF    JURISDICTION.  189 

late  and  control  the  legislative  department  as  to  set  aside 

though  the  law  may  have  designated  the  chief  executive  of  the  state  as 
a  convenient  officer  to  perform  the  duty.  We  do  not  think  that  in  such 
cases  there  is  any  ground  for  distinguishing  the  chief  executive  from 
any  other  officer  who  may  be  designated  to  do  a  mere  ministerial  act, 
otherwise  a  party  might  be  entirely  without  remedy.  "When,  however, 
the  governor  is  directly  empowered  or  required  to  do  an  act,  not  by 
statute  simply,  but,  as  in  this  instance,  by  the  constitution  of  the  state, 
we  do  not  feel  authorized  to  hold  that  it  does  not  pertain  to  the  office 
of  the  chief  executive,  or  that  we  could  compel  the  j^erformance  of  this 
f)r  any  other  executive  duty,  i^rescribed  by  the  organic  law."  Cham- 
berlain V.  Sibley,  4  Minn.  309. 

There  are  cases  holding,  however,  that  the  chief  executive  is  entirely 
independent  of  the  courts,  no  matter  what  the  nature  of  the  duty  to  be 
performed  may  be. 

"One  reason  very  strongly  pressed  why  the  governor  is  subject  to  pro- 
cess in  cases  like  the  present  is,  that  the  act  required  is  not  to 
be  done  in  performance  of  an  executive  duty  imposed  by  the  constitu- 
tion, but  is  in  its  nature  a  ministerial  act,  provided  for  by  statute,  and 
which  might,  with  equal  propriety,  have  been  required  of  an  inferior 
officer,  who,  beyond  question,  could  have  been  compelled  by  mandamus 
to  take  the  necessary  and  proper  action  in  the  premises.  And  the  ques- 
tion is  put  with  some  emphasis,  whether,  when  individual  interests  de- 
pend upon  the  performance  of  ministerial  action,  to  whijh  the  party  is 
entitled  of  right,  the  question  whether  there  shall  be  a  remedy  or  not 
can  depend  upon  the  circumstance  that  in  the  particular  case  the  minis- 
terial action  is  required  of  a  superior  officer  when  there  is  no  reason  in 
its  nature  why  it  might  not  have  been  required  of  an  inferior. 

"A  view  similar  to  this  has  been  taken  in  some  cases,  and  the  courts 
have  undertaken  to  decide  what  are  and  what  are  not  properly  execu- 
tive duties,  and  to  assert  a  right  to  control  the  governor's  action  in  some 
cases,  while  admitting  tlieir  want  of  jurisdiction  to  do  so  in  others. 
The  State  v.  The  Governor,  5  Ohio  St.  528;  Bonner  v.  Pitts,  7  Geo.  473; 
Cotton  V.  The  Governor,  7  Jones,  N.  C.  545 ;  Chamberlain  v.  The  Gov- 
ernor, 4  Minn.  309 ;  Pacific  R.  R.  v.  The  Governor,  23  Mo.  353 ;  Ma- 
gruder  v.  The  Governor,  25  Md.  173.  These  cases  for  the  most  part  are 
rested  upon  the  dictum  of  Chief  Justice  Marshall,  in  Marbury  v.  Madi- 
son, 1  Cranch,  137,  that  one  of  the  heads  of  department  in  the  federal 
government  might  be  compelled  by  mandamus  to  perform  a  mere  min- 
isterial duty  ;  a  diclum  which  can  not  be  understood  as  expressive  of  the 
opinion  of  that  eminent  judge  that  the  president  was  subject  to  the 
like  process,  but  which  is  wholly  inapplicable  to  a  case  like  the  present, 
unless  it  goes  to  that  extent.  For  it  can  not  justly  l)e  claimed,  when 
federal  and  state  governments  have  been  formed,  so  far  as  distribution 
of  power  is  concerned,  on  the  same  general  plan,  that  the  executive  of 
the  union  can  claim  immunity  from  judicial  process  any  more  than  the 
governor  of  one  of  the  states.     In  many  cases  it  is  unquestionable  that 


190  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

aud  declare  void  laws  enacted  by  it,  where  such  laws  are 

the  head  of  an  executive  department  may  be  required  by  judicial 
process  to  perform  a  legal  duty,  while  in  other  cases,  in  our  judgment, 
the  courts  would  be  entirely  without  jurisdiction  ;  and,  as  regards  such 
an  officer,  we  should  concede  that  the  nature  of  the  case  and  of  the 
duty  to  be  performed  must  determine  the  right  of  the  court  to  interfere 
in  each  particular  instance.  When  the  head  of  a  department  acts  as 
a  mere  assistant  or  agent  of  the  executive  in  the  performance  of  a  polit- 
ical or  discretionary  act,  he  is  no  more  subject  to  the  control  of  the 
courts  than  the  chief  executive  himself ;  but  where  a  ministerial  act  is 
required  to  be  done  by  him,  independently  of  the  executive,  though  in 
a  certain  sense  he  is  an  executive  officer,  it  would  be  as  idle  to  dispute 
his  responsibiUty  to  legal  process,  as  it  would  be  to  make  the  same  claim 
to  exemption  on  behalf  of  an  officer  entrusted  wilh  similar  duties  of  a 
lower  grade.  This  is  emphatically  the  case  under  the  constitution  of 
this  state,  which  provides  for  the  election  of  state  and  inferior  officers 
alike  by  the  people,  and  makes  the  chief  officers  of  state  below  the  gov- 
ernor as  independent  of  his  control  in  the  performance  of  their  duties 
as  are  the  officers  of  the  counties  or  of  the  townships. 

"  But  when  duties  are  imposed  upon  the  governor,  whatever  be  their 
grade,  importance,  or  nature,  we  doubt  the  right  of  the  courts  to  say 
that  this  or  that  duty  might  properly  have  been  imposed  upon  a  sec- 
retary of  state,  or  a  sherifl"  of  a  county,  or  other  inferior  officer,  and  that 
inasmuch  as  in  case  it  had  been  so  imposed,  there  would  have  been  a 
judicial  remedy  for  neglect  to  perform  it;  therefore,  there  must  be  the 
like  remedy  when  the  governor  himself  is  guilty  of  a  similar  neglect. 
The  apportionment  of  power,  authority,  and  duty  to  the  governor,  is 
either  made  by  the  people  in  the  constitution,  or  by  the  legislature  in 
making  laws  under  it ;  and  the  courts,  when  the  apportionment  has 
been  made,  would  be  presumptuous  if  they  should  assume  to  declare 
that  a  particular  duty  assigned  to  the  governor  is  not  essentially  execu- 
tive, but  is  of  such  inferior  grade  and  importance  as  properly  to  pertain 
to  some  inferior  office,  aud,  consequently,  for  the  purposes  of  their  juris- 
diction, the  courts  may  treat  it  precisely  as  if  an  inferior  officer  had  been 
required  to  perform  it.  To  do  this  would  be  not  only  to  question  the 
wisdom  of  the  constitution  or  the  law,  but  also  to  assert  a  right  to  make 
the  governor  the  passive  instrument  of  the  judiciary  in  executing  its 
mandates  within  the  sphere  of  his  own  duties.  Were  the  courts  to  go 
so  far,  they  w'ould  break  away  from  those  checks  and  balances  of  gov- 
ernment which  were  meant  to  be  checks  of  co-operation,  and  not  of  an- 
tagonism or  mastery,  and  would  concentrate  in  their  own  hands  some- 
thiug  at  least  of  the  power  which  the  people,  either  directly  or  by  the 
action  of  their  representatives,  decided  to  entrust  to  the  other  depart- 
ments of  the  government. 

"There  is  as  to  all  the  authority  specially  confided  to  the  governor, 
whether  by  the  constitution  or  the  laws,  no  safe  or  logical  doctrine  but 
this:  that  reasons  of  a  conclusive  nature  must  be  presumed  to  have 


COXSTirUTlONAL    LIMITATIONS    OF    JURISDICTION.  191 

in  conflict  with  the  constitution,'  But  this  is  upon  the 
theory,  not  that  the  judicial  department  is  superior  to  the 
legislative,  but  that  the  constitution  is  superior  to  both, 
and  that  it  is  the  province  of  the  former  to  construe  both 
the  constitution  and  the  statutes,  and  determine  whether 
there  is  a  conflict.  If  there  is,  it  is  the  constitution  that 
controls  and  limits  the  legislature,  and  not  the  courts.^ 

The  legislature  can  not  define  the  words,  or  construe 
the  meaning  of  the  constitution,  for  the  courts.^  But  in 
matters  purely  political,  a  construction  given  by  the  po- 
litical department  will  receive  great  consideration  by  the 
courts,  and  in  case  of  provisions  of  doubtful  interpreta- 
tion will  generally  be  followed  implicitly/ 

The  several  departments  are  created  by  and  under  the 
same  authority,  and  are,  to  a  certain  extent,  independent 
of  each  other.  But  each  is  limited  by  the  constitution, 
and  its  authority  must  be  confined  within  constitutional 
limits  by  some  power.  This  power  of  determining  what 
these  constitutional  limits  are  belongs,  as  a  rule,  to  the 
courts.  But  in  the  performance  of  certain  acts,  the  ex- 
ecutive or  legislative  departments  may  be  called  upon  to 
construe  the  constitution,  and  in  some  cases  such  con- 
struction  will  be   conclusive.^     Ordinarily,  however,    the 

been  found,  requiring  the  particular  authority  to  be  confided  to  the  chief 
executive  as  one  properly  and  peculiarly,  if  not  exclusively,  pertaining 
to  the  department  which  he  represents."  Sutherland  v.  Governor,  29 
Mich.  320,  327.  See  also  12  Am.  &  Eng.  Enc.  of  Law,  253.  As  illustrating 
the  distinctions  between  these  difierent  kinds  of  acts  and  duties,  see 
Flonrnoy  v.  Jeffersonville,  17  Ind.  169,  172  ;  79  Am.  Dec.  468  ;  Tompkins 
V.  Little  Rock  &  Ft.  S.  Ry.,  15  Fed.  Rep.  6,  Ifi;  Pennington  v.  Streight. 
54  Ind.  376;  Kendall  v.  Stokes,  3  How.  87 ;  Fausler  v.  Parsons,  6  W.  Va. 
486;  20  Am.  Rep.  431,  436;  State  v.  Doyle,  40  Wis.  175;  22  Am.  Rep. 
692  ;  Jones  v.  United  States,  137  U.  S.  202;  11  Sup.  Ct.  Rep.  80. 

^  Ante,  sec.  27;  Cooley's  Const.  Lim.,  *  p.  45;  McCauley  v.  Brooks,  16 
Cal.  11,  39. 

*  Cooley's  Const.  Lim.,  *  pp.  43,  44,  45,  46 ;  Baily  ( .  Gentry,  1   Mo. 
164 ;  13  Am.  Dec.  484. 

3  Cooley's  Const.  Lim.,  «  pp.  44,  90,  91. 

*  People  V.  Supervisors,  100  111.  495,  504. 

^  Cooley's  Const.  Lim.,   "  p.  41 ;  Whiteman  v.  Wilmington,  etc.,  R.  R. 
Co.,  2  Har.  (Del.)  514;  33  Am.  Dec.  411. 


192  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

constitutionality  of  any  act  of  either  the  executive  or 
legislative  department  is  open  to  inquiry  by  the  judicial 
departnfient,  and  subject  to  be  declared  void  by  the  latter, 
in  an  action  regularly  brought,  involving  the  question.^ 

'  McCauley  v.  Brooks,  16  Cal.  11,  39;  Decatur  v.  Paulding,  14  Pet. 
497,  575. 

"  The  fourth  article  of  the  constitution  reads  as  follows :  '  The  pow- 
ers of  the  government  of  the  State  of  California  shall  be  divided  into 
three  separate  departments — the  legislative,  the  executive,  and  judicial 
— and  no  person  charged  with  the  exercise  of  powers  properly  belong- 
ing to  one  of  these  departments  shall  exercise  any  functions  appertain- 
ing to  either  of  the  others,  except  in  the  cases  hereinafter  expressly  di- 
rected or  permitted.'  There  is  nothing  in  this  distribution  of  powers 
which  places  either  department  above  the  law,  or  makes  either  inde- 
pendent of  the  other.  It  simply  provides  that  there  shall  be  separate 
deiiartments,  and  it  is  only  in  a  restricted  sense  that  they  are  independ- 
ent of  each  other.  There  is  no  such  thing  as  absolute  independence. 
Where  discretion  is  vested  in  terms,  or  necessarily  implied  from  the  na- 
ture of  the  duties  to  be  performed,  they  are  independent  of  each  other, 
but  in  no  other  case.  Where  discretion  exists,  the  power  of  each  is 
absolute,  but  there  is  no  discretion  where  rights  have  vested  under  the 
constitution,  or  by  existing  laws.  The  legislature  can  pass  such  laws  as 
it  may  judge  expedient,  subject  only  to  the  prohibition  of  the  constitu- 
tion. If  it  overstep  those  limits,  and  attempt  to  impair  the  obligation 
of  contracts,  or  to  pass  ex  post  facto  laws,  or  grant  special  acts  of  incor- 
poration for  other  than  municipal  purposes,  the  judiciary  will  set  aside 
its  legislation  and  protect  the  rights  it  has  assailed.  Within  certain 
limits  it  is  independent ;  when  it  passes  over  those  limits,  its  power  for 
good  or  ill  is  gone. 

"The  duty  of  the  judiciary  is  to  pronounce  upon  the  validity  of  the 
laws  passed  by  the  legislature,  to  construe  their  language  and  enforce 
the  rights  acquired  thereunder.  Its  judgment  in  those  matters  can  only 
be  controlled  by  its  intelligence  and  conscience.  From  the  nature  of  its 
duties,  its  action  must  be  free  from  coercion.  But  it  is  not  independent 
of  the  legislature  in  numerous  matters  materially  affecting  its  action 
and  usefulness.  The  legislature  fixes  the  places  where  courts  shall  be 
held,  determines  the  number  of  their  terms,  and  in  the  regulation  of 
proceedings  in  civil  and  criminal  cases,  provides  the  manner  in  which 
suits  shall  be  brought,  prosecutions  conducted,  appeals  taken,  and  all 
the  vast  machinery  by  which  rights  are  asserted  and  wrongs  redressed. 
In  all  these  matters,  with  certain  limited  exceptions,  the  judiciary  is  a 
dependent  department.  To  the  executive  department  a  large  and  im- 
portant class  of  duties  is  intrusted,  in  the  performance  of  which  its  oflS- 
cers  are  subject  to  no  control.  The  governor,  the  head  of  that  depart- 
ment, can  recommend  such  measures  as  in  his  judgment  will  promote 
the  public  interest;  he  can  approve  or  disapprove  of  such  legislation  as 


CONSTITUTIONAL   LIMITATIONS    OF   JURISDICTION.  193 

The  judicial  department  is  not,  when  the  question 
comes  properly  before  it,  bound  by  the  action  of  another 
department  construing  the  constitution,  but  where  the  ac- 
tion of  the  other  department  called  for  judgment  and 
discretion  in  the  ordinary  discharge  of  official  dut}^ 
the  court  can  not  by  mandamus  act  directly  upon  the 
officer,  or  guide  and  control  his  judgment  or  discretion 
in  the  matter/  The  question  whether  a  law  is  wise 
or  just  is  a  legislative  and  not  a  judicial  question.^  The 
power  to  appoint  officers  is  an  executive  and  not  a  legisla- 
tive power,  and,  except  as  to  its  own  officers,  can  not  be 
exercised  by  the  legislature  or  other  law-making  power, 

in  his  opinion  may  advance  or  injure  the  public  welfare  ;  he  can  exer- 
cise his  discretion  in  numerous  appointments  to  office  ;  he  can  grant 
such  reprieves  and  pardons  for  all  offenses  after  conviction,  except  for 
treason  and  in  cases  of  impeachment,  as  he  may  think  proper,  and  call 
out  the  militia  when  he  considers  that  proceeding  necessary,  to  suppress 
insurrection  or  repel  invasion.  The  manner  in  which  he  shall  exercise 
these  duties  rests  in  his  sole  discretion.  In  these  matters  he  is  inde- 
pendent of  the  other  departments;  but  numerous  other  duties  assigned 
to  him  arise  from  legislation  in  which  he  may  never  have  participated, 
or  in  relation  to  which  he  possessed  only  a  qualified  negative,  and  in  the 
performance  of  which  duties  he  has  no  discretion,  but  is  subject,  like 
every  other  citizen,  to  the  law.  In  the  distribution  of  powers,  the  consti- 
tution only  contemplates  that  different  persons  shall  administer  the  differ- 
erent  departments— that  is,  for  example,  that  the  governor,  or  other  mem- 
ber of  the  executive  department,  shall  not  at  the  same  time  be  a  judge  or 
a  member  of  the  legislature.  '  When  we  speak,'  says  Story,  '  of  a  separa- 
tion of  the  three  great  departments  of  government,  and  maintain  that 
that  separation  is  indispensable  to  public  liberty,  we  are  to  understand 
this  maxim  in  a  limited  sense.  It  is  not  meant  to  affirm  that  they 
must  be  kept  wholly  and  entirely  separate  and  distinct,  and  have  no 
common  link  of  connection  or  dependence  the  one  upon  the  other  in 
the  slightest  degree.  The  true  meaning  is,  that  the  whole  power  of  one 
of  these  departments  shall  not  be  exercised  by  the  same  hands  which 
possess  the  whole  power  of  either  of  the  other  departments ;  and  that 
such  exercise  of  the  whole  would  subvert  the  principles  of  a  free  con- 
stitution.' (Coms.  on  the  Cons.,  vol.  1,  sec.  525.)"  Field,  J.,  in  Mc- 
Cauley  v.  Brooks,  16  Cal.  39. 

'  Decatur  v.  Paulding,  14  Pet.  497,  515. 

2  Chae    Chan    Ping   v.  United    States,   130    U.  S.  581 ;    9  Sup.   Ct. 
Rep.  623. 
13 


194  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

unless  expressly  authorized  by  the  constitution.'  But  both 
the  legislative  and  judicial  departments  of  government 
have  the  power  to  appoint  such  officers  as  are  necessary  to 
conduct  their  business  and  carry  out  their  general  powers 
and  duties.^  The  legislature  can  not  impose  upon  courts 
the  duty  of  performing  ministerial  duties.  "  Upon  judges, 
as  such,  no  functions  can  be  imposed  except  those  of  a  ju- 
dicial nature."^  Nor  can  a  court  or  judge  be  authorized 
to  perform  legislative  duties.*  Nor  can  judicial  functions 
or  duties  be  conferred  upon  any  but  courts  and  judicial 
officers.^ 

'  State  V.  Hyde,  121  Ind.  20 ;  22  N.  E.  Rep.  644 ;  State  v.  Barbour,  53 
Conn.  76 ;  55  Am.  Rep.  65  ;  State  v.  Peelle,  121  Ind.  495 ;  22  N.  E.  Rep. 
654  ;  City  of  Evansville  v.  State,  118  Ind.  426  ;  21  N.  E.  Rep.  267. 

The  supreme  court  of  California  has  held  to  the  contrary.  People  v. 
Freeman,  80  Cal.  233  ;  22  Pac.  Rep.  173. 

2  Ante,  sec.  27  ;  State  v.  Hyde,  121  Ind.  20  ;  22  N.  E.  Rep.  644 ;  State  v. 
Noble,  118  Ind.  361 ;  21  N.  E.  Rep.  248. 

^  Cooley's  Principles  Const.  Law,  53 ;  In  re  Griffiths,  118  Ind.  83  ;  20  N. 
E.  Rep.  513. 

*  Smith  V.  Strother,  68  Cal.  194 ;  8  Pac.  Rep.  852. 

^  State  V.  Noble,  118  Ind.  361 ;  21  N.  E.  Rep.  244. 

This  question  arose  in  Indiana  upon  the  statute  of  that  state  provid- 
ing for  the  appointment  of  commissioners  of  the  supreme  court,  in 
which  it  was  provided:  "It  shall  be  the  duty  of  such  commissioners, 
under  such  rules  and  regulations  as  the  supreme  court  shall  adopt 
to  aid  and  assist  that  court  in  the  performance  of  its  duties."  The  supreme 
court  of  Indiana  held  that  this  was  an  attempt  to  confer  upon  others 
than  judges  the  authority  to  perform  judicial  functions,  and  that  the 
statute  was  unconstitutional  for  that  reason.  In  a  long  and  thoroughly 
reasoned  opinion,  Elliott,  C.  J.,  said : 

"Thus  far  we  have  proceeded  upon  the  theory,  and  it  is  the  one  most 
earnestly  pressed  by  counsel,  that  the  commissioners  are  mere  assistants 
of  the  court,  and  we  have  shown  that,  even  on  that  theory,  which  for 
argument's  sake  we  previously  conceded  to  be  correct,  the  act  is  clearly 
and  undoubtedly  unconstitutional.  We  now  deny  the  validity  of  the 
theory,  and  assert  that  the  defendants  have  built  upon  an  assumption 
that  can  not  be  sustained.  The  assumption  that  the  supreme  court  can 
perform  its  judicial  duties  through  the  medium  of  masters  in  chancery 
or  master  commissioners,  or  persons  charged  with  duties  like  those  per- 
formed by  masters  in  chancery  and  master  commissioners,  is  without 
foundation.  If  itcan  notthus  perform  judicial  duties,  it  can  perform  none^ 
for  its  duty  and  its  power  are  exclusively  judicial.  The  supreme  court 
must  decide  for  itself  all  questions  of  law  and  of  fact.  The  facts  must 
be  gathered  from  the  record  by  the  court  itself,  and  can  not  be  obtained 


CONSTITUTIONAL    LIMITATIONS    OF    JURISDICTION.  195 

The  question  whether  a  law  is  in  violation  of  the  consti- 

from  any  other  source,  or  by  any  other  persons  than  the  judges.  It  is  a 
court  of  errors,  an  appellate  tribunal,  charged  with  the  duty  of  decid- 
ing cases  upon  the  record,  and  this  duty  can  not  be  performed  by  dep- 
uties. Independently  of  any  constitutional  provision  this  would  be  so, 
because  judicial  powers  can  not  be  delegated.  This  principle  has  been 
established  for  ages.  Chancellor  Kent  thus  states  this  familiar  rule : 
'  The  general  rule  is  that  judicial  offices  must  be  exercised  in  person,  and 
that  a  judge  can  not  delegate  his  authority  to  another.  I  do  not  know  of 
any  exception  to  this  rule  with  us.'  3  Comm.  (12th  Ed.)  457;  Broom, 
Leg.  Max.  841 ;  Campbell  v.  Board,  20  N.  E.  Rep.  772  (March  26,  1889) ; 
Hards  v.  Burton,  79  111.  504.  Those  who  are  chosen  by  the  people  to  sit 
as  judges  must  themselves  discharge  all  the  judicial  duties  of  their  of- 
fices. The  trust  is  imposed  upon  them,  and  they  can  not  share  their 
judicial  duties  with  any  person.  The  people  have  a  right  to  the  judg- 
ment of  those  whom  they  have  made  judges,  and  this  right  the  judges 
can  not  surrender,  if  they  would,  without  a  flagrant  breach  of  a  sworn 
duty.  The  trust  is  a  personal  one,  inalienably  invested  in  the  persons 
selected  by  the  people,  and  it  can  not  be  delegated  by  the  judges  them- 
selves, nor  by  any  one  else  for  them.  '  It  is  only  the  appointed  judge,' 
says  Chief  Justice  Ryan,  '  who  can  speak  the  authoritative  words  of  the 
law.'  Van  Slyke  r.  Insurance  Co.,  39  Wis.  390.  But  centuries  before, 
and  at  a  time  when  the  king  was  the  fountain  of  judicial  power  theoret- 
ically, and  sat  in  the  courts  of  law  and  equity.  Sir  Edward  Coke  even 
more  emphatically  stated  the  rule.  Said  that '  gladsome  light'  of  juris- 
prudence, the  'judicature  only  belongeth  to  the  judges,'  4  Inst.  73. 
Matthew  Bacon  said :  '  The  king  himself,  though  he  be  intrusted  with 
the  whole  executive  power  of  the  law,  can  not  sit  in  judgment  in  any 
court,  but  his  justice  and  the  laws  must  be  administered  according  to 
the  power  committed  to  and  distributed  among  his  several  courts  of  jus- 
tice,' 2  Bac.  Abr.  619.  Again  we  quote  from  this  high  authority,  who, 
speaking  of  the  judges,  says:  'They  can  not  act  by  deputy,  nor  any 
way  transfer  their  power  to  another,'  Id.  620.  The  theory  of  our  gov- 
ernmental system,  as  embodied  in  our  constitution,  requires  that  the 
persons  to  whom  the  people  have  intrusted  the  judicial  power  shall 
themselves  exercise  it,  and  not  intrust  its  exercise  to  others.  Our  con- 
stitution expressly  so  ordains.  Its  words  are  these :  '  The  supreme  court 
shall,  upon  the  decision  of  every  case  give  a  statement  in  writing  of  each 
question  arising  in  the  record  of  such  case,  and  the  decision  of  the  court 
thereon.'  Article  7,  sec.  5.  The  decision  must  be  that  of  the  court,  and 
so  must  be  the  statement  upon  each  question,  '  and  the  decision 
thereon.'  The  power  of  deciding,  the  duty  of  deciding,  and  the  duty  of 
writing  the  opinions,  is  specifically  imposed  upon  the  court.  A  duty 
imposed  upon  a  department  of  government  must  be  performed  by  the 
chosen  officers  of  that  department,  and  it  can  neither  be  delegated  nor 
surrendered.  Cooley's  Const.  Lim.  (5th  Ed.)  116-139.  Where  a  specific 
duty  is  imposed  upon  a  tribunal,  by  that  tribunal  it  must  be  performed, 


196  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

tution  is  purely  a  judicial  question  that  can  not  be  deter- 
mined by  the  legislature.^ 

30.  Jurisdiction  in  summary  proceedings. — Many  of  the 
proceedings  that  are  classed  as  summary  belong  to  the  in- 

without  calling  any  one  to  perform  it,  or  assist  in  its  performance.  Con- 
roe  V.  Bull,  7  Wis.  354;  Kearns  v.  Thomas,  37  Wis.  118;  Attorney-Gen- 
eral V.  McDonald,  3  Wis.  703.     .     .     . 

"  Without  stopping  to  quote  from  the  briefs  the  portions  (and  many 
pages  are  devoted  to  establishing  the  proposition)  which  assert  that  the 
commissioners  are  to  be  assistants  of  the  court,  with  powers  analogous 
to  those  of  master  commissioners,  we  declare  that  whatever  view  be 
taken  the  act  is  utterly  void,  for  it  is,  as  we  have  shown,  not  within  the 
power  of  the  legislature  to  select  assistants  to  share  with  the  court  its 
duties  and  functions,  nor  is  it  within  the  power  of  the  legislature  to  del- 
egate the  duty  of  deciding  cases,  or  of  giving  decisions  expression  in 
writing,  to  officers  or  tribunals  unknown  to  the  constitution.     .     .     . 

"  But  the  act  does  not  establish  a  court,  nor  create  judges.  It  is  sim- 
ply an  attempt  to  appoint  deputy  judges,  and  a  deputy  judge  is  a  thing 
unheard  of  in  jurisprudence,  and  unknown  to  the  constitution.  A  plan 
similar  to  the  one  which  the  act  before  us  professes  to  outline  was  re- 
cently proposed  to  the  bar  of  New  York,  and  it  was  condemned  as  un- 
constitutional. The  opinion  of  Mr.  Moak,  one  of  the  leaders  of  the 
bar  of  that  state,  that '  new  officers  not  authorized '  by  the  constitution 
'can  not  be  created/ was  accepted  and  adopted.  In  an  editorial  com- 
ment upon  the  proposed  plan,  it  was  said  :  'All  hands  conceded  it  to  be 
unconstitutional  when  they  came  to  think  of  it.'  39  Alb.  Law  J.  242, 
257.     .     .     . 

"  Our  constitution  vests  the  highest  appellate  jurisdiction  of  the  state 
in  a  supreme  court,  and  provides  that  the  number  of  judges  shall  not  be 
more  than  five.  There  can  therefore  be  no  other  supreme  court  than 
the  one  established  by  the  constitution,  and  it  must  be  composed  of  five 
judges,  and  no  more.  There  is  consequently  no  such  officer  under  the 
constitution  as  a  supreme  court  commissioner,  and  there  can  be  no  di- 
vision of  the  duties  of  the  supreme  court  and  a  distribution  to  any  per- 
son other  than  the  judges  of  that  court,  chosen  as  the  constitution  pro- 
vides. The  people  have  a  right  to  the  courts  established  by  and  under 
the  constitution,  and  this  constitutional  right  the  legislature  can  neither 
alter  nor  abridge.  Constitutional  tribunals  can  not  be  changed  by  legis- 
lation, and  the  supreme  court  is  a  constitutional  court.  It  can  be  com- 
posed of  judges  only,  for  only  judges  can  constitute  a  court.  No  part 
of  the  judicial  duties  of  that  court  can  be  assigned  to  any  other  person 
than  one  of  the  duly-chosen  judges.  The  legislature  has  no  power  to 
change  its  organization,  nor  can  that  body,  under  the  guise  of  creating 


1  In  re  Ruan  St.,  132  Pa.  St.  257;  19  Atl.  Rep.  219,  223. 


JURISDICTION   IN   SUMMARY   PROCEEDINGS.  197 

herent  powers  of  courts,  and  have  been  considered  else- 
where.^ 

There  are  many  others  which  are  exercised,  not  through 
the  courts,  but  by  officers  upon  whom  the  duty  of  colfect- 
ing  taxes  and  other  claims  due  the  government  or  the 
states  is  imposed,  and  which  do  not  fall  within  the  scope 
of  this  work.^ 

Other  summary  proceedings,  coming  within  the  juris- 
diction of  the  courts,  are  almost  entirely  regulated  by 
statute,  and  need  but  little  consideration  in  this  connec- 
tion. 

Under  the  common  law  of  England,  debts  due  the  crown 
were  collectible  by  summary  proceedings,  not  authorized 
in  case  of  private  debts,  and  it  is  held  that  the  common 
law  authorizing  the  collection  of  debts  due  the  govern- 

commissioners,  divide  the  duties  of  the  judges,  or  authorize  it  to  be 
done.  Under  our  constitution,  as  amended,  the  legislature  may  estab- 
lish courts,  but  it  can  not  destroy  the  constitutional  courts,  the  circuit 
courts,  and  the  supreme  court,  nor  can  it  change  their  organization,  nor 
redistribute  their  powers,  for  these  courts  owe  their  organization  to  the 
constitution,  and,  as  the  constitution  has  ordained  that  they  shall  be  or- 
ganized, so  they  shall  be.  Judicial  power  distributed  by  the  constitu- 
tion is  beyond  legislative  control."  State  v.  Noble,  118  Ind.  361 ;  21  N. 
E.  Rep.  2-44,  249. 

In  California  a  similar  statute  was  enacted,  in  which  it  was  provided 
that:  "It  shall  be  the  duty  of  said  coynmissioners,  under  such  rules  and  reg- 
ulations as  said  court  may  adopt,  to  assist  in  the  performance  of  its  duties 
and  in  the  disposition  of  tlie  numerous  causes  now  pending  in  said  court  unde- 
terminedy  There  is  no  material  difference  between  this  statute  and  the 
Indiana  statute  above  referred  to  as  to  the  powers  conferred  upon  the 
commissioners,  nor  is  there  any  difference  material  to  this  question  be- 
tween the  constitutions  of  the  two  states.  But  the  supreme  court  of 
California  has  held  the  statute  of  that  state  constitutional  on  the  ground 
that  the  duties  imposed  upon  the  commissioners,  by  that  statute,  were 
not  judicial  in  their  nature.     People  v.  Hayne,  83  Cal.  111. 

An  attempt  is  made  in  the  majority  opinion  of  the  court  to  distinguish 
the  case  of  State  v.  Noble,  supra,  but  the  chief  justice,  in  a  concurring 
opinion,  concedes  it  to  be  in  point,  as  it  undoubtedly  is.  Therefore 
these  two  cases  are  directly  opposed  to  each  other,  and  the  Indiana  case 
is  certainly  more  thoroughly  and  satisfactorily  reasoned  and  seems  to  be 
fully  supported  by  both  reason  and  authority. 

'  Ante,  sec.  27;  post,  sec.  31. 

^  McMillen  v.  Anderson,  95  U.  S.  37 ;  Den  r.  Hoboken  Land  &  Imp.  Co., 
18  How.  272. 


198  GENERAL    PRINCIPLES   AFFECTING    JURISDICTION. 

raent  by  summary  proceedings,  and  without  resorting  to 
the  courts,  is  not  inconsistent  with  that  clause  of  our  con- 
stitution which  provides  that  no  person  shall  "  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of 
law,"  and  that  congress  has  power  to  authorize  such  col- 
lections by  summary  proceedings  and  without  judicial 
process  or  judgment.^ 

Legislation  in  this  country  has,  at  the  present  day, 
brought  almost  all  summary  proceedings  under  express 
statutory  provisions,  except  such  as  belong  to  the  courts 
and  are  beyond  legislative  control.  Therefore,  in  order  to 
know  what  the  jurisdiction  of  the  courts  is  in  this  class 
of  proceedings,  one  must  look  to  the  statutes  providing 
for  and  regulating  the  same.  It  is  only  necessary  to  say, 
generally,  that  in  such  proceedings,  as  they  are  special  and 
statutory,  the  courts  must  pursue  the  statute  strictly  in 
acquiring  and  exercising  jurisdiction.^ 

31.  Control  of  attorneys. — Attorneys  are  so  far  officers 
of  the  court  that  they  are  subject  to  its  control,  and  may 
be  suspended  or  removed  for  misconduct.^ 

Every  court  has  the  inherent  power  to  punisli  attorneys 
for  misconduct  affecting  the  proceedings  or  process  of  the 
court.*  And  this  power,  on  the  part  of  courts  of  general 
jurisdiction  having  authority  to  admit  attorneys  to  prac- 
tice, extends  to  the  suspension  or  disbarment  of  attorneys.^ 
But  the  legislature  may  regulate  this  power  and  require 
that,  before  an  attorney  shall  be  removed,  certain  pre- 
scribed proceedings  therefor  shall  be  taken,  and  this  has 
been  very  generally  done.  Where  the  steps  necessary  to 
be  taken  in  order  to  suspend  or  remove  an  attorney  from 
the  practice  are  prescribed  by  statute,  these  steps  must  be 

1  Den  V.  Hoboken  Land  &  Imp.  Co.,  18  How.  272.  ^  Ante,  sec.  20. 

3  Cohen  v.  AVright,  22  Cal.  293,  315;  In  re  Davies,  93  Pa.  St.  116;  39 
Am.  Rep.  729 ;  Ex  parte  Wall,  107  U.  S.  265 ;  2  Sup.  Ct.  Rep.  569. 

*  Ante,  sec.  27. 

5  People  V.  Turner,  1  Cal.  143,  149;  52  Am.  Dec.  295;  State  v.  Burr,  19 
Neb.  593 ;  28  N.  W.  Rep.  261 ;  In  re  Davies,  93  Pa.  St.  116 ;  39  Am.  Rep. 
729;  Bradley  v.  Fisher,  13  Wall.  335. 


CONTROL    OF    ATTORNEYS.  199 

taken.  The  court  can  not  proceed  arbitrarily  or  sum- 
marily and  without  reference  to  the  statute.^  And, 
whether  notice  of  a  proceeding  to  disbar  an  attorney  is 
required  by  statute  or  not,  it  has  been  uniformly  held  that 
such  notice  is  necessary.^ 

An  attorney  may,  like  any  other  person,  be  punished 
for  contempt.  In  such  cases,  it  is  usually  held  that  he 
can  only  be  punished  as  other  persons  may  be  punished, 
viz.,  by  fine  and  imprisonment,  but  that  he  can  not  as  a 
punishment  be  suspended  or  disbarred  as  an  attorney.^  He 
may,  however,  be  suspended  or  removed  for  misconduct, 
whether  such  misconduct  is  such  as  to  constitute  a  con- 
tempt of  court  or  not,  and  even  where  the  same  is  not 
connected  with  his  official  conduct  as  an  attorney.* 

But  such  suspension  or  removal,  it  is  held,  can  not,  in 
such  cases,  be  regarded  as  a  punishment,  but  rather  as  re- 
lieving the  bar  and  the  court  of  the  presence  of  one 
shown  to  be  unfit,  by  reason  of  his  misconduct,  to  be  an 
attorney.^ 

'  Ex  parte  Smith,  28  Ind.  47 ;  State  v.  McClaugherty,  33  W.  Va.  250; 
10  S.  E.  Eep.  407. 

^  People  V.  Turner,  1  Cal.  143 ;  52  Am.  Dec.  295 ;  Bradley  v.  Fisher,  13 
Wall.  335. 

•'  Ex  parte  Smith,  28  Ind.  47. 

*  Cohen  v.  Wright,  22  Cal.  293,  317 ;  In  re  Mills,  1  Mich.  392. 

'  People  V.  Turner,  1  Cal.  143,  149 ;  52  Am.  Dec.  295,  300 ;  1  Lawson's 
Rights  &  Rem.,  sec.  129 ;  Ex  parte  Wall,  107  U.  S.  265 ;  2  Sup.  Ct.  Rep.  569. 

"  Was  the  order  properly  made,  and  a  valid  determination  of  the 
court,  which  ought  not  to  be  disturbed  ?  It  does  not  appear  that  it  was 
made  as  a  punishment  for  contempt,  and  if  it  were  intended  as  such  it 
could  not  be  supported.  The  thirteenth  section  of  the  act  organizing 
the  district  courts  prescribes  fine  and  imprisonment  as  a  punishment  for 
contempt,  and  this  express  provision  must  be  taken  as  exclusive  of  all 
other  modes  of  punishment.  Viewed  as  an  adjudication  for  a  contempt, 
the  order  is  invalid,  for  inflicting  a  punishment  different  from  that  war- 
ranted by  the  statute,  the  same  as  it  would  have  been  had  it  imposed  a 
heavier  fine  or  sentenced  to  a  longer  imprisonment  than  the  statute  au- 
thorizes. Besides,  it  is  not  usual  for  a  court  to  interpose  by  a  proceed- 
ing for  contempt  against  an  attorney  for  any  act  independent  of  his  pro- 
fession ;  and  it  ajipears,  both  from  the  order  itself  and  from  the 
affidavits,  that  the  offenses  charged  against  these  parties  were  not  con- 
nected with  their  professional  employment  as  attorneys.  The  order 
should,  therefore,  be  regarded  as  the  exercise  of  a  power  inherent  in 


200  GENERAL    PRINCIPLES    AFFECTING    JURISDICTION. 

As  the  power  to  disbar  is  inherent  in  the  court,  where 
grounds  for  disbarment  are  specified  by  statute  this  can 
not  prevent  the  court  from  disbarring  an  attorney  for 
other  good  grounds.^  But  it  is  held  that  an  attorney  can 
not,  in  a  proceeding  for  contempt,  be  disbarred  by  a  sum- 
mary order  of  the  court  where  the  proceedings  to  be  taken 
to  disbar  an  attorney  are  provided  by  statute.^  And  in 
some  cases  it  is  held  that  a  court  can  not  disbar  for  causes 
not  enumerated  in  the  statute.^ 

An  attorney  may  be  disbarred  for  an  indictable  offense, 
although  no  prosecution  for  such  offense  has  been  com- 
menced.* 

There  is  some  diversity  of  opinion  in  the  decided  cases 
upon  the  question  whether  an  attorney  can  be  proceeded 
against,  summarily,  for  an  indictable  offense  not  com- 
mitted as  an  attorney,  and  disbarred,  before  indictment 
and  conviction.  But  the  weight  of  authority  and  reason 
is  clearly  in  favor  of  the  right  of  the  court  to  take  such 
course.^     Nor  does  the  fact   that  the  attorney  has  been 

every  court,  which  has  the  authority  to  admit  attorneys  to  practice,  of 
striking  their  names  from  the  rolls,  or,  as  the  order  expresses  it,  of  ex- 
pelling them  from  the  bar,  whenever  they  are  guilty  of  such  conduct, 
either  in  or  out  of  their  profession,  as  shows  them  to  be  be  unfit  per- 
sons to  practice  it.  But  where  an  attorney  is  proceeded  against  with 
this  object,  he  is  entitled  to  have  notice  of  the  charges  against  him,  and 
an  opportunity  to  make  his  defense.  This  is  not  only  the  dictate  of 
natural  justice,  and  the  uniform  practice  in  such  cases,  but  it  has  been 
carried  into  an  express  adjudication  in  Ex  parte  Heyfron,  7  How. 
(Miss.)  127.  In  the  case  at  bar,  no  notice  of  the  charges  upon  which 
the  order  was  made  was  given ;  no  opjiortunity  for  explanation,  apol- 
ogy, or  defense  was  afforded;  the  judgment  of  the  court  was  ex  parte, 
and  condemned  the  defendants  without  a  hearing.  It  is  barely  neces- 
sary to  add,  that  a  judgment  thus  rendered,  partaking  so  strongly  of 
the  nature  of  a  criminal  proceeding,  and  so  serious  in  its  consequences, 
can  not  be  supported."     People  v.  Turner,  1  Cal.  149. 

1  State  V.  Kirke,  12  FJa.  278 ;  95  Am.  Dec.  314,  333,  note  ;  In  re  Mills, 
1  Mich.  392. 

2  Ex  parte  Smith,  2S  Ind.  47. 

2  See  note  to  State  v.  Kirke,  95  Am.  Dec.  333,  334. 

*  State  V.  Winton,  11  Or.  456;  50  Am.  Rep.  486;  Ex  parte  Wall,  107 
U.  S.  265,  274 ;  2  Sup.  Ct.  Rep.  569;  Ex  parte  Walls,  64  Ind.  461. 

^  A  very  thorough  review  of  the  cases  will  be  found  in  the  opinion  of 
Mr.  Justice  Bradley  in  Ex  parte  Wall,  107  U.  S.  265 ;  2  Sup.  Ct.  Rep. 


CONTROL    OF    ATTORNEYS.  201 

tried  and  convicted  of  the  offense,  and  pardoned,  affect 
the  power  of  the  court  to  disbar  him.^ 

A  distinction  is  made,  in  some  of  the  cases,  between  a 
proceeding  to  disbar  an  attorney  which  affects  his  right 
to  practice  in  any  and  all  of  the  courts  of  the  state,  and 
one  to  strike  his  name  from  the  roll  of  attorneys  and  re- 
voke his  right  to  practice  in  that  particular  court ;  it  being 
held  that  in  the  latter  the  court  may  proceed  summarily, 
and  without  complying  with  the  statute  providing  for 
proceedings  to  disbar  attorneys.^ 

The  fact  that  the  misconduct  complained  of  was  com- 
mitted in  a  proceeding  before  a  federal  tribunal  is  no 
reason  why  a  state  court  may  not,  for  that  cause,  disbar 
the  attorney.^ 

569.  The  fact  that  the  proceeding  to  disbar  has  been  instituted  by  a 
cUent  of  the  attorney,  and  the  client,  having  procured  a  settlement,  asks 
that  the  proceeding  be  dismissed,  does  not  deprive  the  court  of  the 
power  to  proceed  with  the  hearing  and  disbar  the  accused. 

In  re  Davis,  93  Pa.  St.  116;  39  Am.  Rep.  729. 

1  In  re  Attorney,  86  N.  Y.  563. 

^  State  V.  McClaugherty,  33  W.  Va.  250 ;  10  S.  E.  Rep.  407. 

'  In  re  O ,  73  Wis.  602;  42  N.  W.  Eep.  221. 


202 


MEANS    OF    ACQUIRING   JURISDICTION. 


CHAPTER  III. 

MEANS  OF  ACQUIRING  JURISDICTION. 

32.  Generally. 

33.  Due  process  of  law. 

34.  Appearance  and  its  effects. 

35.  Nature  and  different  kinds  of  original  process. 
3G.  Requisites  of  process. 

37.  Service  of  process. 

38.  Constructive  service  of  process. 

39.  Proof  of  service  of  process. 

40.  Defective  process  and  service. 

41.  Waiver  of  process  and  service  and  defects  therein. 

42.  Of  new  parties  and  amended  pleadings. 

43.  In  actions  against  corporations. 

44.  Where  cross-complaint  is  filed. 


32.  Generally. — One  of  the  great  principles  that  un- 
derlies and  supports  our  system  of  government  is  that  no 
person  shall  be  deprived  of  his  life,  liberty  or  property, 
without  an  opportunity  to  be  heard  before  a  lawfully  con- 
stituted tribunal,  and  an  adjudication  against  him  in  the 
due  course  of,  and  according  to,  the  law  of  the  land.^ 
Therefore,  it  is  generally  held  that  in  order  to  give  a 
court,  or  other  tribunal  or  officer,  jurisdiction  or  power  to 
deprive  one  of  life,  liberty,  or  property,  or  the  proper  and 
lawful  enjoyment  thereof,  such  person  must  first  have  no- 
tice, in  some  form,  of  the  proceedings  about  to  be  taken 
against  him  or  his  property.^ 

^  Post,  sec.  33 ;  Amend.  Const.  U.  S.,  art.  5,  and  art.  14,  sec.  1 ;  1  Black 
on  Judg.,  sees.  220,  226 ;  Windsor  v.  McVeigh,  93  U.  S.  274 ;  In  re  Gan- 
non, 18  Atl.  Rep.  159;  Bardwell  r.  Anderson,  44  Minn.  97;  46  N.  W. 
Rep.  315,  317;  Fhnt  River  Steamboat  Co.  v.  Foster,  5  Ga.  194;  48  Am. 
Dec.  248,  271,  note ;  McVeigh  v.  United  States,  11  Wall.  259,  267. 

*  Ante.,  sees.  11-14,  22,  23;  post,  sec.  33:  1  Black  on  Judg.,  sees.  215, 
220,  227 ;  Stuart  v.  Palmer,  74  N.  Y.  183,  190 ;  Bardwell  v.  Anderson,  44 
]\Iinn.  97 ;  46  N.  W.  Rep.  315 ;  Kentucky  Eclectic  Inst.  v.  Gaines,  1  S. 
AV.  Rep.  444. 


GENERALLY.  203 

And  if  a  defendant  has  not  appeared,  and  an  amended 
pleading  is  filed  changing  the  cause  of  action  in  any  ma- 
terial respect,  or  alleging  a  new  cause  of  action,  a  new 
notice  must  be  given.^  It  is  otherwise  where  the  claim  of 
the  plaintiff  is  not  materially  changed  by  the  amendment.^ 

The  manner  in  which  such  notice  shall  be  given,  and 
proof  thereof  made,  are  regulated  by  statutory  provisions, 
and  are  different  in  the  different  states.  The  mode  uni- 
versally allowed,  however,  and  which  is  generally  required 
in  all  cases  except  upon  a  showing  that  it  can  not  be  fol- 
lowed, is  personal  service  of  notice  upon  the  party  to  be 
affected,  of  the  time,  place,  and  object  of  the  j^roceeding.^ 
But,  as  we  have  seen  elsewhere,  the  authority  of  a  court 
can  not  extend  beyond  its  own  territorial  jurisdiction,  and 
its  process  can  not  go  beyond  it  ;*  therefore  it  has  been 
found  necessary  to  provide  for  substituted  service  where 
the  subject-matter  of  the  action,  or  proceeding,  is  within 
the  jurisdiction  of  the  court,  but  personal  service  can  not 
be  had  upon  the  party  whose  interests  are  to  be  aflected, 
and  in  some  other  cases.^ 

What  shall  be  shown  in  order  to  authorize  this  substi- 
tuted notice,  and  the  kind  of  notice  that  shall  be  given, 
are  provided  for  and  regulated  by  statutory  provisions. 
The  statutes  of  the  United  States  and  of  the  several  states 
are  not  alike  as  to  details,  but  there  is  a  remarkable  uni- 
formity in  their  provisions  as  to  matters  of  substance," 

It  is  the  uniform  tendency  of  the  statutes  to  require 
personal  notice  where  it  can  be  had,  and  to  compel  a  very 

^  Ante,  sec.  13 ;  post,  sec.  42 ;  Kentucky  Eclectic  Inst.  v.  Gaines,  1  S. 
W.  Rep.  444;  Schuyler  Nat.  Bank  v.  BoUong,  28  Neb.  684;  45  N.  W. 
Rep.  164. 

^  Schuyler  Nat.  Bank  v.  Bollong,  28  Neb.  684 ;  45  N.  W.  Rep.  164. 

^  Post,  sees.  33,  35 ;  Nations  r.  Johnson,  24  How.  195 ;  Bardwell  v.  An- 
derson, 44  Minn.  97;  46  N.  W.  Rep.  315;  Latimer  v.  Union  Pac.  Ry., 
43  Mo.  105;  97  Am.  Dec.  378. 

*  Ante,  sec.  15;  post,  sec.  37  ;  1  Black  on  Judg.,  sees.  217,  227,  228 ;  Lat- 
imer V.  Union  Pac.  Ry.,  43  Mo.  105;  97  Am.  Dec.  378. 

5  Ante,  sees.  11,  12,  13 ,  post,  sec.  38 ;  Hogle  v.  Mott,  62  Vt.  255  ;  20  Atl. 
Rep.  276 ;  Callen  v.  Ellison,  13  Ohio  St.  446 ;  82  Am.  Dec.  448. 

®  Ante,  sec.  14. 


204  MEANS    OF    ACQUIRING   JURISDICTION. 

clear  showing  of  inability  to  give  such  notice  in  order  to 
procure  a  substituted  or  constructive  service.^  The  statu- 
tory provisions  show,  also,  an  intention  to  furnish,  in  lieu 
of  personal  service,  the  most  efiectual  substitute  that  can 
be  had.^  The  courts  have  shown  a  like  disposition  by 
construing  the  statutes  on  t^e  subject  with  great  strictness 
in  favor  of  the  party  to  be  affected.^ 

This  right  to  proceed  upon  constructive  service  is  not 
allowed  in  all  cases,  even  where  personal  service  can  not 
be  had.  It  is  never  allowed  as  against  a  non-resident  in 
an  action  brought  for  the  sole  purpose  of  recovering  a  per- 
sonal judgment,  nor  can  a  personal  judgment  be  rendered 
upon  constructive  service,  although  such  notice  is  proper 
as  authorizing  some  other  relief  sought  in  the  action.^ 

It  is  otherwise  in  case  of  a  resident  defendant.  Every 
state  has  the  power  to  prescribe  what  notice  shall  be  given 
its  own  citizens  of  proceedings  against  them,  so  long  as 
the  constitutional  inhibition  against  depriving  any  person 
of  life,  liberty,  or  property  without  due  process  of  law,  or 
similar  state  constitutional  provisions,  is  not  infringed.* 
What  will  amount  to  an  infringement  of  this  constitu- 
tional provision,  and  like  provisions  in  the  state  consti- 
tutions, will  be  considered  elsewhere.^ 

The  issuance  and  service  of  process  is  not  the  only 
means  by  which  jurisdiction  of  the  person  may  be  ob- 
tained. It  is  necessary  that  a- defendant  have  notice,  but 
this  may  be  given  in  other  ways  than  by  process  if  author- 

1  Post,  sec.  38. 

*  Ante,  sees.  13,  20,  23 ;  post,  sec.  38 ;  1  Black  on  Judg.,  sec.  232 ;  Bard- 
well  V.  Anderson,  44  Minn.  97;  46  N.  W.  Eep.  315,  317. 

^  Ante,  sees.  13,  14;  post,  sec.  38;  Freeman  on  Judg.,  sec.  567;  Pen- 
noyer  v.  Neff,  95  U.  S.  714;  1  Black  on  Judg.,  sees.  220,  221,  223,  227; 
Beard  v.  Beard,  21  Ind.  321;  Price  v.  Hickok,  39  Vt.  292;  Lydiard  v. 
Chute,  45  Minn.  277 ;  47  N.  W.  Rep.  967. 

*  Amend.  Const.  U.  S.,  art.  5 ;  art.  14,  sec.  1  ;  ante,  sees.  13,  14,  23,  25 ; 
post,  sec.  33 ;  Freeman  on  Judg.,  sec.  570 ;  1  Black  on  Judg.,  sec.  227 ; 
Beard  v.  Beard,  21  Ind.  321.  But  see  to  the  contrary  cases  cited  in 
Freeman  on  Judg.,  sec.  570.  Also  Bard  well  v.  Anderson,  44  Minn.  97; 
46  N.  W.  Eep.  315 ;  post,  sees.  33,  38. 

^  Post,  sec,  33. 


GENERALLY.  205 

ized  by  law.  Thus,  in  some  of  the  states,  notice  in  the  na- 
ture of  a  summons,  but  signed  by  the  attorney  of  the 
plaintiff,  is  authorized.  In  those  states  it  is  held  that  such 
notices  are  not  process,  but  their  validity,  and  the  consti- 
tutionality of  statutes  authorizing  such  notices,  is  unques-^ 
tioned.^  It  is  not  always  necessary  that  notice  of  any 
kind  shall  be  given.     Such  notice  as  the  law  requires  may 

^  Hanna  v.  Russell,  12  Minn.  43;  Porter  v.  Vandercook,  11  Wis.  70; 
Comet  Consolidated  Min.  Co.  v.  Frost,  15  Colo.  310;  25  Pac.  Rep.  506; 
Nichols  V.  Burlington,  etc.,  Co.,  4  G.  Greene  (la.),  42. 

"As  to  the  first  point  raised,  that  the  summons  is  such  a  process  as 
must  be  issued  in  the  name  of  the  people  of  the  state  of  Colorado,  we 
are  strongly  inclined  to  follow  the  conclusion  of  the  supreme  court  of 
Florida  in  Gilmer  v.  Bird,  15  Fla.  411.  In  this  case  the  identical  ques- 
tion here  presented  is  discussed  at  some  length,  that  is,  'that  the  sum- 
mons, as  authorized  by  the  code,  is  a  "  process"  within  the  meaning  of 
the  constitutional  provisions  which  require  the  style  of  all  process  to  be 
the  "  State  of  Florida ;  "  that  the  summons  had  no  such  style  ;  that  this 
was  essential  to  the  validity  of  the  judgment,  there  having  been  no  ap- 
pearance.' And  the  court  said:  'But  is  a  notice  given  by  an  attorney 
of  the  institution  of  a  suit  in  a  form  familiar  to  a  summons,  but  not  is- 
suing out  of  a  court,  a  "  process  "  within  the  meaning  of  the  constitu- 
tion ?  Baron  Comyn,  in  giving  the  definition  of  the  term  "  process," 
says  it  imports  the  writs  which  issue  out  of  any  court  to  bring  the  party 
to  answer,  or  for  doing  execution.  There  is  no  definition  of  "  process," 
given  by  any  accepted  authority,  which  imjilies  that  any  writ  or  method 
by  which  a  suit  is  commenced  is  necessarily  "  process."  A  party  is  en- 
titled to  notice  and  to  a  hearing  under  the  constitution  before  he  can  be 
afiected,  but  it  is  nowhere  declared  or  required  that  that  notice  shall  be 
only  a  writ  issuing  out  of  a  court.'  In  Porter  v.  Vandercook,  11  Wis.  70, 
it  was  held  that '  the  summons  provided  for  by  the  code  is  not  a  ''  writ " 
or  "process"  within  the  meaning  of  the  constitution,  art.  7,  sec.  17,  and 
need  not  be  in  the  "  name  of  Wisconsin,"  nor  tested  in  the  name  of  the 
presiding  judge,  nor  sealed  with  the  seal  of  the  court.'  In  Hanna  v. 
Russell,  12  Minn.  80  (Gil.  43),  the  court  said:  'But  we  think  a  "sum- 
mons" is  not  "process"  within  the  meaning  of  sec.  14,  art.  6,  of  our 
state  constitution.  It  is  merely  a  notice  given  by  plaintifl"'s  attorney  to 
the  defendant  that  proceedings  have  been  instituted,  and  judgment  will 
be  taken  against  him  if  he  fail  to  defend.  This  notice  is  not  issued  out 
of  or  under  the  seal  of  the  court,  or  by  the  authority  of  the  court  or 
any  judicial  officer.  The  fact  tliat  the  court  acquires  jurisdiction  by  its 
service  does  not  prove  it  "  process,"  for  it  is  competent  for  the  legisla- 
ture to  provide  that  the  court  sliall  acquire  jurisdiction  by  the  service 
of  the  complaint  without  a  summons,  or  in  any  other  manner  bj-^  which 
the  defendant  may  be  notified  that  proceedings  have  been  instituted 
against  him.'     In  Bailey  v.  Williams,  0  Or.  71,  it  was  held  that  'a  sum- 


206  MEANS    OF    ACQUIRING    JURISDICTION. 

be  waived  by  the  party  entitled  to  such  notice.  "What  is 
necessary  to  constitute  such  waiver  is  considered  else- 
where.^ The  different  means  by  which  a  court  or  other 
tribunal  may  acquire  jurisdiction,  has  been  briefly  consid- 
ered in  the  chapter  on  general  principles  afi:ecting  jurisdic- 
tion,^ and  will  be  taken  up  more  minutely,  and  in  detail,  in 
the  succeeding  sections  of  this  chapter. 

33.  Due  process  of  law. — The  constitution  of  the  United 
States  provides  that  no  state  shall  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law,  or  deny 
to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws.^  State  constitutions  contain  similar  pro- 
visions. The  inhibition  of  the  fourteenth  amendment  ap- 
plies, in  terms,  to  the  states,  and  renders  void  any  law  en- 
acted by  a  state  authorizing  the  taking  of  the  life,  liberty, 
or  property  of  any  person,  without  due  process  of  law,  or 
the  taking  thereof  by  the  state  itself  without  such  process.* 
But  it  applies  not  only  to  the  state,  but  to  every  depart- 
ment of  it,  and  prohibits  such  action  by  the  courts  or  other 
tribunals,  whether  acting  under  the  laws  of  the  state  au- 
thorizing or  attempting  to  authorize  it  or  not.  It  is  not 
confined  to  judicial  proceedings,  but  extends  to  every  case 
or  proceeding  which  may  deprive  a  citizen  of  life,  liberty, 
or  property,  whether  the  proceeding  be  judicial,  adminis- 

mons  used  to  bring  a  defendant  into  the  circuit  court  is  not  "  process," 
and  need  not  run  in  the  name  of  the  state.'  In  Nichols  v.  Plank-road 
Co.,  4  G.  Greene,  44,  it  was  held  that  '  the  notice  provided  by  the  code 
is  not  a  "  process,"  and  need  not  be  in  the  style  of  the  "  state  of  Iowa."  ' 
This  seems  to  be  the  generally  accepted  conclusion  of  all  courts  having 
a  similar  code  practice,  and  a  similar  provision  in  the  constitution,  and 
is,  in  our  judgment,  a  satisfactory  determination  of  this  question." 
Comet  Consolidated  Min.  Co.  v.  Frost,  15  Colo.  310;  25  Pac.  Rep. 
506,  507. 

^  Ante,  sees.  13,  23;  Post,  sees.  34,  41.  See  also,  1  Black  on  Judg., 
sec.  225. 

2  Ante,  sees.  11-14,  23. 

'  Amd.  Const.  U.  S.,  art.  5,  art.  14,  sec.  1. 

*  Cohen  v.  Wright,  22  Cal.  293,  318;  People  v.  O'Brien,  111  N.  Y.  1; 
18  N.  E.  Rep.  692 ;  Ex  parte  Ulrich,  42  Fed.  Rep.  587. 


DUE    PROCESS    OF    LAW.  207 

trative,  or  executive  in  its  nature.^  And  these  provisions 
of  the  constitution  are  alike  applicable  to  laws  enacted  by 
congress.^  The  amendment  of  the  constitution,  article  5, 
is  a  limitation  upon  the  powers  of  congress  and  the  federal 
judiciary,  and  does  not  apply  to  the  state  authorities.^ 

Many  attempts  have  been  made  to  define  "  due  process  of 
law,"  but  no  satisfactory  definition  has  been  or  can  be 
given,  although  the  intent  of  the  constitutional  provision 
has  been  stated  with  clearness  and  accuracy.* 

^  Weimer  v.  Bruemburg,  30  Mich.  201 ;  Stuart  v.  Palmer,  74  N.  Y.  190 ; 
30  Am.  Rep.  289  ;  In  re  Monroe,  46  Fed.  Rep.  52  ;  Davidson  v.  New  Or- 
leans, 96  U.  S.  97,  101,  107. 

2  Den  V.  Hoboken  Land  and  Imp.  Co.,  18  How.  272. 

'  Eilenbecker  v.  District  Court  Plymouth  Co.,  134  U.  S.  31 ;  10  Sup.  Ct. 
Rep.  424 ;  Nashville,  C.  &  St.  L.  Ry.  Co,  v.  State  of  Alabama,  128  U.  S. 
96 ;  9  Sup.  Ct.  Rep.  28 ;  Ex  parte  Ulrich,  42  Fed.  Rep.  587,  589. 

*  Davidson  v.  New  Orleans,  96  U.  S.  97 ;  Chauvin  v.  Valiton,  8  Mont. 
451 ;  20  Pac.  Rep.  658;  Ex  parte  Ulrich,  42  Fed.  Rep.  587;  Lent  v.  Till- 
son,  140  U.  S.  316 ;  11  Sup.  Ct.  Rep.  825 ;  Bank  of  State  v.  Cooper,  24 
Am.  Dec.  538,  note. 

"  It  must  be  confessed,  however,  that  the  constitutional  meaning  or 
value  of  the  phrase  '  due  process  of  law,'  remains  to-day  without  that 
satisfactory  precision  of  definition  which  judicial  decisions  have  given 
to  nearly  all  the  other  guarantees  of  personal  rights  found  in  the  consti- 
tutions of  the  several  states  and  of  the  United  States."  Davidson  v. 
New  Orleans,  96  U.  S.  97,  101. 

"  It  is  difficult  to  define  with  precision  the  exact  meaning  and  scope 
of  the  phrase,  '  due  process  of  law.'  Any  definition  which  could  be 
given,  would  probably  fail  to  comprehend  all  the  cases  to  which  it  would 
apply.  It  is  probably  wiser,  as  recently  stated  by  Mr.  Justice  Miller  of 
the  United  States  Supreme  Court,  to  leave  the  meaning  to  be  evolved 
'  by  the  gradual  process  of  judicial  inclusion  and  exclusion,  as  the  cases 
presented  for  decision  shall  require,  witli  the  reason  on  which  such  de- 
cisions may  be  founded.'  (Davidson  v.  Board  of  Administrators  of  New 
Orleans,  17  Albany  Law  Journal,  223.)  It  may,  however,  be  stated  gen- 
erally that  due  process  of  law  requires  an  orderly  proceeding  adapted 
to  the  nature  of  the  case  in  which  the  citizen  hac  an  opportunity  to  be 
heard,  and  to  defend,  enforce,  and  protect  his  right.  A  hearinw  or  an 
opportunity  to  be  heard,  is  absolutely  essential.  We  can  not  conceive 
of  due  process  of  law  without  this.  In  his  argument  in  the  Dartmouth 
College  case  (4  Wheat.  519),  Webster  defined  '  due  process  of  law  '  as  a 
proceeding  '  which  proceeds  upon  inquiry  and  renders  judgment  only 
after  trial.'  ]\Ir.  Justice  Edwards,  in  Westervelt  v.  Gregg  (12  N.  Y.  209), 
defines  it  as  follows:  'Due  process  of  law  undoubtedly  means  in  due 
course  of  legal  proceedings  according  to  those  rules  and  forms  which 


208  MEANS   OF   ACQUIKING   JURISDICTION. 

It  has  been  held  that  the  words  "  due  process  of  law  " 
were  intended  to  convey  the  same  meaning  as  the  words 
"  by  the  law  of  the  land  "  in  magna  charta.^  And  "  law 
of  the  land  "  has  been  defined  as  "  a  general  and  public 
law  equally  binding  upon  every  member  of  the  commu- 

have  been  established  for  the  protection  of  private  rights.'  Judge 
Cooley,  in  his  work  on  Constitutional  Limitations,  at  page  355,  after 
saying  that  '  due  process  of  law  '  is  not  confined  to  ordinary  judicial 
proceedings,  but  extends  to  all  cases  where  property  is  sought  to  be 
taken  or  interfered  with,  says,  that  '  due  process  of  law  in  each  partic- 
ular case  means  such  an  exertion  of  the  powers  of  government,  as  the 
settled  maxims  of  law  permit  and  sanction,  and  under  such  safeguards  for 
the  protection  of  individual  rights  as  these  maxims  prescribe  for  the 
class  of  cases  to  which  the  one  in  question  belongs.'  It  has  always  been 
the  general  rule  in  this  country,  in  every  system  of  assessment  and  tax- 
ation, to  give  the  person  to  be  assessed  an  opportunity  to  be  heard  at 
some  stage  of  the  proceeding.  That '  due  process  of  law '  requires  this, 
has  been  quite  uniformly  recognized."     Stuart  v.  Palmer,  74  N.  Y.  191. 

"  No  court  has  ever  attempted  to  give  a  complete  or  exhaustive  defi- 
nition of  the  term  '  due  process  of  law,'  for  it  is  incapable  of  any  such 
definition.  All  that  can  be  done  is  to  lay  down  certain  general  princi- 
ples, and  apply  these  to  the  facts  of  each  case  as  they  arise.  Mr.  Web- 
ster, in  his  argument  in  the  Dartmouth  College  case,  gave  an  exposition 
of  the  words  '  law  of  the  land,'  and  '  due  process  of  law,'  which  has 
often  been  quoted  by  the  courts  with  approval,  viz  :  '  The  general  law, 
which  hears  before  it  condemns;  which  proceeds  upon  inquiry,  and 
renders  judgment  only  after  trial.'  In  judicial  proceedings  '  due  process 
of  law '  requires  notice,  hearing,  and  judgment.  It  does  not  mean,  of 
course,  the  general  body  of  the  law,  common  and  statute,  as  it  was  at 
the  time  the  constitution  took  eflfect ;  for  that  would  deny  to  the  legis- 
lature the  power  to  change  or  amend  the  law  in  any  particular. 
Neither,  on  the  other  hand,  does  '  the  law  of  the  land,'  or  '  due  process 
of  law  '  mean  any  thing  which  the  legislature  may  see  fit  to  declare  to 
be  such  ;  for  there  are  certain  fundamental  rights,  which  our  system  of 
jurisprudence  has  always  recognized,  which  not  even  the  legislature 
can  disregard  in  proceedings  by  which  a  person  is  deprived  of  life, 
liberty,  or  property ;  and  one  of  these  is  notice  before  judgment  in  all 
judicial  proceedings.  Although  the  legislature  may  at  its  pleasure  pro- 
vide new  remedies  or  change  old  ones,  the  power  is  nevertheless  subject 
to  the  condition  that  it  can  not  remove  certain  ancient  landmarks  or  take 
away  certain  fundamental  rights,  which  have  been  always  recognized 
and  observed  in  judicial  procedure."  Bardwell  v.  Anderson,  44  Min.  97; 
46  N.  W.  Rep.  315,  317. 

1  Den  V.  Hoboken  Land  and  Imp.  Co.,  18  How.  272  ;  Davidson  v.  New 
Orleans,  96  U.  S.  97.  101 ;  Ex  parte  Ulrich,  42  Fed.  Rep.  587,  589;  Bank 
of  the  State  v.  Cooper,  2  Yerg.  (Tenn.),  599;  24  Am.  Dec.  517,  537,  note. 


DUE    PROCESS    OF    LAW.  209 

nity ;"  and,  as  a  law  "  which  embraces  all  persons  who  are 
or  may  come  into  like  situation  and  circumstances."  ^ 

The  word  "  liberty,"  as  used  in  the  constitution,  means 
something  more  than  freedom  from  actual  servitude,  im- 
prisonment, or  restraint.  It  includes  the  right  to  use  one's 
faculties  in  all  lawful  ways,  to  pursue  any  lawful  trade  or 
avocation  and  to  use  his  property  in  all  proper  ways  for 
his  own  good.^ 

1  Dibrell  v.  Morris,  15  S.  W.  Rep.  87,  92 ;  Bank  of  State  v.  Cooper,  2  Yerg. 
(Tenn.),  599;  24  Am.  Dec.  517. 

*  In  re  Jacobs,  98  N.  Y.  98,  106  ;  50  Am.  Rep.  636  ;  People  v.  Marx,  99 
N.  Y.  377,  386;  2  N.  E.  Rep.  29 ;  dissenting  opinion  of  Mr.  Justice  Field 
in  Powell  v.  Pennsylvania,  127  XJ.  S.  678 ;  8  Sup.  Ct.  Rep.  1257. 

"  The  constitutional  guaranty  that  no  person  shall  be  deprived  of  his 
property  without  due  process  of  law  may  be  violated  without  the  phys- 
ical taking  of  property  for  public  or  private  use.  Property  may  be  de- 
stroyed, or  its  value  may  be  annihilated  ;  it  is  owned  and  kept  for  some 
useful  purpose,  and  it  has  no  value  unless  it  can  be  used.  Its  capability 
for  enjoyment  and  adaptability  to  some  use  are  essential  characteristics 
and  attributes  without  which  property  can  not  be  conceived ;  and  hence 
any  law  which  destroys  it  or  its  value,  or  takes  away  any  of  its  essential 
attributes,  deprives  its  owner  of  his  property. 

"The  constitutional  guaranty  would  be  of  little  worth,  if  the  legis- 
lature could,  without  compensation,  destroy  property  or  its  value,  de- 
prive the  owner  of  its  use,  deny  him  the  right  to  live  in  his  own  house, 
or  to  work  at  any  lawful  trade  therein.  If  the  legislature  has  the  power 
under  the  constitution  to  prohibit  the  prosecution  of  one  lawful  trade  in 
a  tenement  house,  then  it  may  prevent  the  prosecution  of  all  trades 
therein.  '  Questions  of  power,'  says  Chief-Justice  Marshall,  in  Brown 
V.  State  of  Maryland  (12  Wheat.  419),  '  do  not  depend  upon  the  degree 
to  which  it  may  be  exercised.  If  it  may  be  exercised  at  all  it  must  be 
exercised  at  the  will  of  those  in  whose  hands  it  is  placed.'  Blackstone 
in  his  classification  of  fundamental  rights  says :  '  The  third  absolute 
right  inherent  in  every  Englishman  is  that  of  property  which  consists 
in  the  free  use,  enjoyment,  and  disposal  of  all  his  acquisitions  without  any 
control  or  diminution,  save  only  by  the  law  of  the  land.'  (1  Com.  138.) 
In  Pampelly  v.  Green  Bay  Co.  (13  Wall.  166, 177),  Miller,  J., says:  '  There 
may  be  such  serious  interruption  to  the  common  and  necessary  use  of 
property  as  will  be  equivalent  to  a  taking  within  the  meaning  of  the 
constitution.'  In  Wynehamer  v.  People  (13  N.  Y.  378,  398),  Comstock,  J., 
says:  *  When  a  law  annihilates  the  value  of  property  and  strips  it  of  its 
attributes,  by  which  alone  it  is  distinguished  as  property,  the  owner  is 
deprived  of  it  according  to  the  plainest  interpretation,  and  certainly 
within  the  constitutional  provision  intended  expressly  to  shield  personal 
14 


210  MEANS    OF    ACQUIRING   JURISDICTION. 

But  at  last  each  case  must  depend  largely  upon  its  own 
facts,  and  many  times  upon  the  sentiments  of  the  particu- 
lar court  before  whom  the  question  arises  as  to  what  is 
necessary  to  constitute  due  process  of  law,  and  when  the 

rights  from  the  exercise  of  arbitrary  power.'  In  People  v.  Otis  (90  N. 
Y.  48),  Andrews,  J.,  says:  '  Depriving  an  owner  of  property  of  one  of 
its  attributes  is  depriving  him  of  his  property  within  the  constitutional 
provision.' 

"  So,  too,  one  may  be  deprived  of  his  liberty  and  his  constitutional 
rights  thereto  violated  without  the  actual  imprisonment  or  restraint  of 
his  person.  Liberty,  in  its  broad  sense  as  understood  in  this  country, 
means  the  right,  not  only  of  freedom  from  actual  servitude,  imprison- 
ment, or  restraint,  but  the  right  of  one  to  use  his  faculties  in  all  lawful 
ways,  to  live  and  work  where  be  will,  to  earn  his  livlihood  in  any  law- 
ful calling,  and  to  pursue  any  lawful  trade  or  avocation.  All  laws,  there- 
fore, which  impair  or  trammel  *hese  rights,  which  limit  one  in  his  choice 
of  a  trade  or  profession,  or  confine  him  to  work  or  live  in  a  specified 
locality,  or  exclude  him  from  his  own  house,  or  restrain  his  otherwise 
lawful  movements  (except  as  such  laws  may  be  passed  in  the  exercise 
by  the  legislature  of  the  police  power,  which  will  be  noticed  later), 
are  infringements  upon  his  fundamental  rights  of  liberty,  which  are  un- 
der constitutional  protection.  In  Butchers'  Union  Co.  v.  Crescent  City  Co. 
(Ill  U.  S.  746),  Field,  J.,  says  that  among  the  inalienable  rights  as  pro- 
claimed in  the  Declaration  of  Independence  '  is  the  right  of  men  to 
pursue  any  lawful  business  or  vocation  in  any  manner  not  inconsistent 
with  the  equal  rights  of  others,  which  may  increase  their  property  or 
develop  their  faculties,  so  as  to  give  them  their  highest  enjoyment. 
The  common  business  and  callings  of  life,  the  ordinary  trades  and  pur- 
suits which  are  innocent  in  themselves,  and  have  been  followed  in  all 
communities  from  time  immemorial,  must,  therefore,  be  free  in  this 
country  to  all  alike  upon  the  same  terms.  The  right  to  pursue  them 
without  let  or  hindrance,  except  that  which  is  applied  to  all  persons  of 
the  same  age,  sex  and  condition,  is  a  distinguishing  privilege  of  citizens 
of  the  United  States,  and  an  essential  element  of  that  freedom  which 
they  claim  as  their  birthright.'  In  the  same  case  Bradley,  J.,  says:  '  I 
hold  that  the  liberty  of  pursuit,  the  right  to  follow  any  of  the  ordinary 
callings  of  life,  is  one  of  the  privileges  of  a  citizen  of  the  United  States,' 
of  which  he  can  not  be  deprived  without  invading  his  right  to  liberty 
within  the  meaning  of  the  constitution.  In  Live  Stock,  etc.,  Association 
V.  Crescent  City,  etc..  Company  (1  Abb.  U.  S.  388,  398),  the  learned 
presiding  justice  says:  'There  is  no  more  sacred  right  of  citizenship 
than  the  right  to  pursue  unmolested  a  lawful  employment  in  a  law- 
ful manner.  It  is  nothing  more  nor  less  than  the  sacred  right 
of  labor.*  In  Wynehamer  v.  People,  Johnson,  J.,  says:  'That  a  law 
which  should  make  it  a  crime  for  men  either  to  live  in,  or  rent  or  sell 
their  houses,'  would  violate  the  constitutional  guaranty  of  personal 
liberty.     In  Bertholf  v.  O'Reilly  (74  N.  Y.  509, 515),  Andrews,  J.,  says  that 


DUE    PROCESS    OF    LAW.  211 

constitutional  provision  guaranteeing  the  right  has  been 
violated.^ 

One  thing,  however,  is  universally  held,  viz.,  that  in 
order  to  constitute  due  process  of  law,  in  a  judicial  pro- 
ceeding, notice,  in  some  form,  must  be  given  to  the  party 
to  be  affected.^  And  that,  after  notice,  the  party  must 
have  an  opportunity  to  be  heard  before  some  lawfully  con- 
stituted body  having  authority  to  act  in  the  premises.^ 

It  is  not  enough  that  a  party  have  notice.  There  must 
be  some  law  authorizing  it.  Notice  not  authorized  by  law 
is  no  notice.* 

Therefore,  it  may  safely  be  said  that  the  constitutional 
provision  under  consideration  requires  :  1.  Notice  to  the 
party.  2.  An  opportunity  to  be  heard.  3.  That  the  hear- 
ing shall  be  before  a  court  or  other  tribunal  lawfully  or- 
ganized and  vested  with  authority  to  act  in  the  premises. 
4.  That  the  hearing  and  determination  shall  be  in  accord- 
ance with  law  and  established  principles.^ 

one  could  '  be  deprived  of  his  liberty  in  a  constitutional  sense  without 
putting  his  person  in  confinement,'  and  that  a  man's  right  to  liberty  in- 
cluded '  the  right  to  exercise  his  faculties,  and  to  follow  a  lawful  avoca- 
tion for  the  support  of  life.'  "  In  re  Jacobs,  98  N.  Y.  98,  105  ;  50  Am. 
Rep.  636. 

'  Bank  of  State  v.  Cooper,  24  Am.  Dec.  538,  note. 

^  Ante,  sec.  32;  Stuart  v.  Palmer,  74  N.  Y.  183,  190;  30  Am.  Rep.  289; 
Kuntz  V.  Sumption,  117  Ind.  1;  19  N.  E.  Rep.  474;  Hutson  v.  Wood- 
bridge  Pro.  Dist.,  79  Cal.  90;  21  Pac.  Rep.  435;  Murdock  v.  City  of  Cin- 
nati,  39  Fed.  Rep.  891 ;  Scott  v.  City  of  Toledo,  36  Fed.  Rep.  385 ; 
Chauvin  v.  Valiton,  8  Mont.  451 ;  20  Pac.  Rep.  658 ;  Ulman  v.  Mayor, 
etc.,  of  Baltimore,  20  Atl.  Rep.  141 ;  McEneny  v.  Town  of  Sullivan,  125 
Ind.  407;  25  N.  E.  Rep.  540;  Flint  River,  etc.,  Co.  v.  Foster,  48  Am.  Dec. 
271,  note;  City  of  Bufialo  v.  Chadeayne,  27  N.  Y.  St.  Rep.  60;  7  N.  Y. 
Sup.  501. 

^  Ante,  sec.  32;  Windsor  v.  McVeigh,  93  U.  S.  274;  McVeigh  v.  United 
States,  11  Wall.  259,  267. 

*  Kuntz  V.  Sumption,  117  Ind.  1 ;  19  N.  E.  Rep.  474. 

*  Cooley's  Const.  Eim.,  ■■  p.  355 ;  Den.  v.  Hoboken  Land  and  Imp.  Co., 
18  How.  272 ;  Cohen  v.  Wright,  22  Cal.  293,  318 ;  People  v.  O'Brien,  111 
N.  Y.  1;  18  N.  E.  Rep.  692;  Hutson  v.  AVoodbridge  Pro.  Dist.,  79  Cal. 
90;  21  Pac.  Rep.  435;  Parsons  r.  Russell,  11  Mich.  113;  83  Am.  Dec. 
728,  731,  note. 

"  The  principles,  then,  upon  which  the  process  is  based  are  to  deter- 
mine whether  it  is  '  due  process  '  or  not,  and  not  any  considerations  of 


212  MEANS    OF    ACQUIRING   JURISDICTION. 

But  the  requirements  of  the  constitution  do  not  neces- 
sarily imply  a  regular  proceeding  in  a  court  of  justice,  or 
after  the  manner  of  such  courts.^  The  power  to  proceed 
against  the  property  of  a  citizen  may,  in  some  cases,  be 
vested  in  the  executive  department  of  the  government  or 
some  officer  or  tribunal  other  than  the  courts.' 

The  right  to  collect  debts  due  the  government  by  sum- 
mary proceedings,  and  without  resort  to  the  courts,  is  up- 
held as  due  process  of  law.^  And,  in  some  cases,  notice 
may  not  be  necessary  because  the  law  under  which  an  in- 
strument is  executed  provides  that  in  case  of  default  judg- 
ment shall  be  entered  against  him  and  execution  issue. 
For  example,  where  it  is  provided  that  where  an  under- 
taking on  appeal  is  given,  and  the  judgment  appealed  from 
is  affirmed,  judgment  shall  be  entered  against  the  sure- 
mere  form.  Administrative  and  remedial  process  may  be  changed  from 
time  to  time,  but  only  with  due  regard  to  the  landmarks  established  for 
the  protection  of  the  citizen.  When  the  government  through  its  estab- 
lished agencies  interferes  with  the  title  to  one's  property,  or  with  his 
independent  enjoyment  of  it,  and  its  action  is  called  in  question  as  not 
in  accordance  with  the  law  of  the  land,  we  are  to  test  its  validity  by 
those  principles  of  civil  liberty  and  constitutional  protection  which 
have  become  established  in  our  system  of  laws,  and  not  generally  by 
rules  that  pertain  to  forms  of  procedure  merely.  In  judicial  proceed- 
ings the  law  of  the  land  requires  a  hearing  before  condemnation,  and 
judgment  before  dispossession ;  but  when  property  is  appropriated  by 
the  government  to  public  uses,  or  the  legislature  interferes  to  give  di- 
rection to  its  title  through  remedial  statutes,  different  considerations 
from  those  which  regard  the  controversies  between  man  and  man  must 
prevail,  different  proceedings  are  required,  and  we  have  only  to  see 
whether  the  interference  can  be  justified  by  the  established  rules  ap- 
plicable to  the  special  case.  Due  process  of  law  in  each  particular  case 
means,  such  an  exertion  of  the  powers  of  government  as  the  settled 
maxims  of  law  permit  and  sanction,  and  under  such  safeguards  for  the 
protection  of  individual  rights  as  those  maxims  prescribe  for  the  class 
of  cases  to  which  the  one  in  question  belongs."  Cooley's  Const.  Lim., 
*  p.  356. 

^  Den  V.  Hoboken  Land  and  Imp.  Co.,  18  How.  272;  Davidson  v.  New 
Orleans,  96  U.  S.  97,  102,  107;  Chauvin  v.  Valiton,  8  Mont.  451 ;  20  Pac. 
Eep.  658 ;  Lent  v.  Tillson,  140  U.  S.  316 ;  11  Sup.  Ct.  Rep.  825 ;  Speer  v. 
Mayor,  etc.,  of  Athens,  85  Ga.  49 ;  11  S.  E.  Rep.  802. 

^  People  V.  Turner,  117  N.  Y.  227 ;  22  N.  E.  Rep.  1022. 

^  Ante,  sec.  30 ;  Den  v.  Hoboken  Land  and  Imp.  Co.,  18  How.  272. 


DUE    PROCESS    OF    LAW.  213 

ties  and  execution  be  issued  against  them.  In  such  and 
similar  cases  the  law  itself  is  notice  to  the  party  that  he 
will,  immediately  upon  default,  become  liable  for  the 
amount  for  which  he  has  become  surety,  without  further 
notice,  and  by  executing  the  instrument  the  surety  con^ 
sents  to  the  entry  of  such  judgment  without  notice  or 
other  proceeding  against  him  and  submits  himself  to  the 
jurisdiction  of  the  court  for  that  purpose.^ 

So  it  is  held  that  proceedings  to  raise  the  public  revenue, 
by  levying  and  collecting  taxes,  are  not  necessarily  judicial 
and  within  the  constitutional  inhibition,  and  that  the  stat- 
ute authorizing  such  proceedings  furnishes  all  the  notice 
that  is  necessary.^ 

The  authority  to  take  property  by  eminent  domain  is 
no  exception  to  the  rule  that  the  party  whose  property  is 
sought  to  be  taken  is  entitled  to  notice  and  hearing.^  But 
personal  notice  is  not  indispensable.* 

Due  process  of  law  requires  notice,  hearing,  and  judg- 
ment.^ But  where  a  court  or  other  tribunal  is  called 
upon  to  decide  a  matter  of  pure  discretion,  upon  its  own 
judgment,  unaided  by  evidence,  notice  is  not  essential.^ 
And  subject  to  constitutional  restrictions,  and  certain 
general  and  universally  recognized  principles  and  usages, 
the  states  have  the  authority  to  provide  what  notice 
shall  be  given,  and  the  manner  in  which  it  shall  be  given, 
as  against  its  own  citizens.^     And  it  is  here  that  great 

1  Stapp  V.  The  Clyde,  44  Minn.  510 ;  47  X.  W.  Eep.  160  ;  Ladd  v.  Par- 
nell,  57  Cal.  232;  Meredith  r.  S.  O.  M.  A.  of  Baltimore,  60  Id.  617; 
Mowry  v.  Heney,  86  Id.  471 ;  25  Pac.  Rep.  17  ;  Flint  River,  etc.,  Co.  v. 
Foster,  48  Am.  Dec.  277,  note. 

»  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Kentucky,  115  U.  S.  321 ;  6  Sup. 
Ct.  Rep.  57,  60. 

'  Flint  River,  etc.,  Co.  v.  Foster,  48  Am.  Dec.  278,  note ;  Mulligan  v. 
Smith,  59  Cal.  206,  230. 

*  Cupp  V.  Commissioners,  19  Ohio  St.  173. 

5  Bardwell  v.  Anderson,  44  Minn.  97  ,  46  N.  W.  Rep.  315,  317. 

®  Kuntz  V.  Sumption,  117  Ind.  1 ;  19  N.  E.  Rep.  474 ;  Weaver  v.  Tenip- 
lin,  113  Ind.  298 ;  14  N.  E.  Rep.  600. 

'  Kuntz  V.  Sumption,  117  Ind.  1  ;  19  N.  E.  Rep.  474;  Lent  v.  Tillson, 
140  U.  S.  316  ;  11  Sup.  Ct.  Rep.  825  ;  Stapp  v.  The  Clyde,  44  Minn.  510 : 
45  N.  W.  Rep.  430 ;  Chavannes  i\  Priestly,  80  la.  316 ;  45  N.  W.  Rep.  766 ; 


214  MEANS    OF    ACQUIRING   JURISDICTION, 

difficulty  lias  arisen.  Upon  the  question  as  to  what  notice 
is  sufficient  to  vest  a  court,  or  other  tribunal,  with  author- 
ity to  deal  with  the  property  of  a  citizen  the  authorities 
are  numerous  and  conflicting.  That,  as  against  non-resi- 
dents, nothing  less  than  actual  personal  service  of  process 
upon  a  party,  within  the  state,  will  authorize  a  court  to 
render  a  personal  judgment  against  him  seems  to  be  al- 
most, if  not  quite,  universally  accepted  as  the  correct  doc- 
trine.^ And  the  later  decisions  hold,  not  only  that  a  per- 
sonal judgment,  binding  upon  a  non-resident  party  and 
his  property  generally,  can  not  be  rendered  without  actual 
personal  notice,  within  the  state,  but  that  such  a  judgment 
can  not  be  made  binding  as  a  jpersonal  jadginent  upon  prop- 
erty of  his  within  the  jurisdiction  of  the  court.^ 

Whether  a  state  has  authority  to  authorize  personal 
judgments  against  its  own  citizens  upon  constructive  no- 
tice is  a  question  about  which  the  decisions  are  conflicting. 
The  weight  of  authority,  and  the  better  reason,  seems  to 
be  that  a  state  has  the  power  to  provide  what  notice 
shall  be  given  in  proceedings  against  its  own  citizens,  and 
that  so  long  as  some  notice  is  provided  for  the  constitution 
of  the  United  States  is  not  violated,  and  the  question  as 
to  the  sufficiency  of  the  notice  can  not  be  inquired  into.' 

In  many  cases,  and  particularly  in  the  matter  of  as- 
sessments for  public  improvements,  it  is  held  to  be  suffi- 
cient if  a  general  notice  to  all  persons  is  provided  for.* 
Some  of  the  authorities  seem  to  go  to  the  extent  of  hold- 
ing that  a  state  has  the  power  to  provide  for  the  taking  of 
the  property  of  its  own  citizens  without  any  notice.^  But 
there  is  no  principle  of  law  or  justice   upon  which   any 

Caldwell  v.  State,  137  U.  S.  692  ;  11  Sup.  Ct.  Eep.  224;  Hogle  v.  Mott,  62 
Vt.  255  ;  20  Atl.  Rep.  276 ;  McEneney  v.  Town  of  Sullivan,  125  Ind.  407 ; 
25  N.  E.  Rep.  540 ;  Flint  River,  etc.,  Co.  v.  Foster,  48  Am.  Dec.  272,  note. 

Mnte,  sees.  13,  23 ;  post,  sec.  38 ;  Flint,  River,  etc.,  Co.  v.  Foster,  48 
Am.  Dec.  273,  note. 

^Ante,  sec.  32;  post,  sec.  38;  Freeman  on  Judg.,  sec.  567;  Pennoyer  v. 
Neff,  95  U.  S.  714. 

^Ante,  sec.  32 ;  post,  sec.  38. 

♦  McEneney  v.  Town  of  Sullivan,  125  Ind.  407 ;  25  N.  E.  Rep.  540. 

^  1  Black  on  Judg.,  sec.  221,  and  cases  cited. 


I 


DUE    PROCESS    OF    LAW.  21.5 

such  authority  can  rest.  And  in  some  of  the  cases  the 
doctrine  that  a  state  can  authorize  personal  judgments 
against  its  own  citizens  without  actual  personal  notice  Is 
strongly  comhatted  and  wholly  denied.^  But  the  author- 
ity to  provide  for  constructive  service  where  a  resident  cit-^ 
izen  of  a  state  conceals  himself,  or  can  not  be  found,  has 
never  been  denied,  nor  has  the  right  to  provide  for  service 
of  process  by  leaving  a  copy  at  the  last  place  of  residence 
of  a  citizen  of  a  state  been  disputed.  And  this  is  not  ac- 
tual or  personal  service.  This  is  justified  on  the  ground 
of  necessity.  But  who  is  to  determine  when  the  necessity 
for  constructive  service  exists,  or  the  expediency  of  pro- 
viding for  constructive  service,  if  not  the  legislature  ?  And 
if  the  legislature  has  the  power  to  provide  for  it  in  one 
class  of  cases,  why  not  in  all.  The  ground  upon  which  it 
is  usually  held  that  the  law-making  power  can   not  pro- 

1  Bardwell  v.  Anderson,  44  Minn.  97 ;  46  N.  W.  Rep.  315. 

"As  a  substitute  for  the  means  formerly  resorted  to  in  England  in 
such  cases,  most  of  the  American  states  have  adopted  service  of  the  pro- 
cess or  summons  by  publication.  But  we  have  found  no  statute,  except 
the  one  now  under  consideration,  which  has  assumed  to  authorize  such 
a  mode  of  service,  and  have  found  no  case  where  its  validity  has  been 
sustained  by  the  courts,  except  as  to  defendants  who  could  not  be  found 
within  the  jurisdiction  either  because  of  non-residence,  or  because  they 
had  absconded  or  concealed  themselves  to  avoid  the  service  of  process. 
We  think  this  will  be  found  true  in  every  instance,  from  the  earliest  de- 
cisions on  the  subject  down  to  the  latest  utterance  of  the  Supreme  Court 
of  the  United  States  in  Arndt  v.  Griggs,  10  Sup.  Ct.  Eep.  557,  in  which 
that  court  took  occasion  to  set  at  rest  some  misapprehensions  as  to  the 
scope  of  their  previous  decision  in  Hart  v.  Sansom,  110  U.  S.  151,  3  Sup. 
Ct.  Rep.  586.  We  think  it  would  be  a  surprise  to  the  bench  and  the 
bar  of  the  country  if  it  should  be  held  that  process  or  summons  in 
ordinary  civil  actions  might  be  served  on  resident  defendants,  present 
and  capable  of  being  found  within  the  jurisdiction  of  the  court,  merely 
by  publication  in  a  newspaper.  The  dangers  and  abuses  that  would 
arise  from  such  a  practice  are  too  apparent  to  require  to  be  named  or 
even  suggested.  So  radical  a  departure  is  this  from  the  uniform  and 
well-established  ideas  of  what  constitutes  due  process  of  law  in  such  cases, 
that  although  this  act  has  been  on  the  statute  books  for  twenty-four 
years,  we  doubt  whether  one  lawyer  in  twenty  is  aware  of  its  existence, 
and  we  have  yet  to  hear  of  any  case,  except  the  j^resent,  where  any  one  has 
ventured  to  act  upon  it."  Bardwell  v.  Anderson,  44  Minn.  97 ;  46  N.  W. 
Rep.  315. 


216  MEANS    OF    ACQUIRING    JURISDICTION. 

vide  for  constructive  service  when  personal  service  can  be 
had,  is  that  while  the  legislature  may  change  the  forms  of 
process  from  time  to  time,  it  must  be  done  "  with  due  re- 
gard to  the  landmarks  established  for  the  protection  of  the 
citizen."  ^  And  that  the  right  to  actual  personal  notice 
has  from  time  immemorial  been  recognized  as  one  of  these 
landmarks,  and  "  fundamental  rights  which  have  been  al- 
ways recognized  and  observed  in  judicial  procedures."^ 

But  if  this  be  so,  many  of  the  proceedings  in  probate, 
and  other  similar  proceedings  by  which  the  title  to  prop- 
erty of  persons  residing  within  the  jurisdiction  of  the 
court  may  be  taken  away  on  merely  constructive  service, 
must  be  held  to  be  void  on  the  same  principle.  There 
can  be  no  difference  in  principle,  in  this  respect,  between 
a  judgment  against  the  person  which  may  be  enforced 
against  the  property  of  a  citizen,  and  one  that  acts  directly 
upon  his  property.  And  yet  it  is  presumed  that  the  right 
to  proceed  against  the  property  of  a  resident  citizen  upon 
constructive  notice  in  many  cases  will  not  be  controverted. 
But  this  is  a  question  that,  so  for  as  it  applies  to  personal 
judgments  in  common-law  actions,  must  be  regarded  as 
an  open  one,  for  the  very  good  reason  that  the  law  mak- 
ers, whatever  their  powers  may  be,  have  rarely  attempted 
to  take  away  the  right  to  personal  service  where  it  can 
reasonably  be  had.  It  is  conceded,  however,  that  a  large 
discretion  is  vested  in  the  legislature  as  to  the  notice  to  be 
required  and  the  forms  of  procedure,  depending  upon  the 
laws,  habits,  customs  and  preferences  of  the  people  of  each 
state,  and  the  nature  and  objects  of  the  proceedings  pro- 
vided, and  tbe  reasonableness  of  the  notice  under  the  cir- 
cumstances.^ 

1  Cooley's  Const.  Lim.,  *  p.  356. 

2  Bardwell  v.  Anderson,  44  Minn.  97 ;  46  N.  W.  Rep.  315. 

'  Davidson  v.  New  Orleans,  96  U.  S.  97,  107;  Dent  v.  West  Va.,  129  U. 
S.  114;  9  Sup.  Ct.  Rep.  231;  Alexander  v.  Archer,  24  Pac.  Rep.  373; 
McCauley  w.  Fulton,  41  Cal.  355;  Lent  v.  Tillson,  72  Cal.  404;  14  Pac. 
Rep.  71 ;  Davies  v.  Los  Angeles,  86  Cal.  37  ;  24  Pac.  Rep.  771 ;  Lent  v. 
Tillson,  140  U.  S.  316 ;  11  Sup.  Ct.  Rep.  825 ;  Speer  v.  Mayor,  etc.,  of 
Athens,  85  Ga.  49;  11  S.  E.  Rep.  802;  Hogle  v.  Mott,  62  Vt.  255 ;  20  Atl. 


DUE    PROCESS    OF    LAW.  217 

And  if  the  procedure  is  in  accordance  with  the  law- 
Rep.  276 ;  Mutual  Life  Ins.  Co.  v.  Pinner,  43  N.  J.  E.  52 ;  10  Atl.  Eep. 
184. 

In  Davidson  v.  New  Orleans,  9G  U.  S.  107,  it  was  said  by  Mr.  Justice 
Bradley  in  a  concurring  opinion  : 

"  It  seems  to  me  that  private  property  may  be  taken  by  a  state  with' 
out  due  process  of  law  in  other  ways  than  by  mere  direct  enactment,  or 
the  want  of  a  judicial  proceeding.  If  a  state,  by  its  laws,  should  au- 
thorize private  property  to  be  taken  for  public  use  without  compensa- 
tion (except  to  prevent  its  falling  into  the  hands  of  an  enemy,  or  to 
prevent  the  spread  of  a  conflagration,  or  in  virtue  of  some  other  immi- 
nent necessity,  where  the  property  itself  is  the  cause  of  the  public 
detriment),  I  think  it  would  be  depriving  a  man  of  his  property  Mith- 
out  due  process  of  law.  The  exceptions  noted  imply  that  the  nature 
and  cause  of  the  taking  are  proper  to  be  considered.  The  distress- 
warrant  issued  in  the  case  of  Murray's  Lessee  et  al.  v.  Hoboken  Land 
and  Improvement  Co.  (18  How.  272)  was  sustained,  because  it  was  in 
consonance  with  the  usage  of  the  English  government  and  our  state 
governments  in  collecting  balances  due  from  public  accountants,  and 
hence  was  'due  process  of  law.'  But  the  court  in  that  case  expressly 
holds  that '  it  is  manifest  that  it  was  not  left  to  the  legislative  power  to 
enact  any  process  which  might  be  devised.  The  article  is  a  restraint  on 
the  legislative,  as  well  as  on  the  executive  and  judicial  power  of  the  gov- 
ernment, and  can  not  be  so  construed  as  to  leave  congress  free  to  make 
any  process  "  due  process  of  law  "  by  its  mere  will'  (p.  276).  I  think, 
therefore,  we  are  entitled,  under  the  fourteenth  amendment,  not  only 
to  see  that  there  is  some  process  of  law,  but  '  due  process  of  law  '  pro- 
vided by  the  state  law  when  a  citizen  is  deprived  of  his  property;  and 
that,  in  judging  what  is  '  due  process  of  law,'  respect  must  be  had  to  the 
cause  and  object  of  the  taking,  whether  under  the  taxing  power,  the 
power  of  eminent  domain,  or  the  power  of  assessment  for  local  im- 
provements, or  none  of  these  ;  and  if  found  to  be  suitable  or  admissi- 
ble in  the  special  case,  it  will  be  adjudged  to  be  '  due  process  of  law ;' 
but  if  found  to  be  arbitrary,  oppressive  and  unjust,  it  may  be  declared 
to  be  not  'due  process  of  law.'  Such  an  examination  may  be  made 
without  interfering  with  that  large  discretion  which  every  legislative 
power  has  of  making  wide  modifications  in  the  forms  of  procedure  in 
each  case,  according  as  the  laws,  habits,  customs,  and  preferences  of  the 
people  of  the  particular  state  may  require." 

And  in  Dent  v.  West  Virginia,  129  U.  S.  114  (9  Sup.  Ct.  Rep.  231),  Mr. 
Justice  Field,  in  delivering  the  opinion  of  the  court,  said : 

"As  we  have  said  on  more  than  one  occasion,  it  may  be  difficult,  if 
not  impossible,  to  give  to  the  terms  '  due  process  of  law '  a  definition 
which  will  embrace  every  permissible  exertion  of  power  affecting  private 
rights,  and  exclude  such  as  are  forbidden.  They  come  to  us  from  the 
law  of  England,  from  which  country  our  jurisprudence  is  to  a  great  ex- 
tent derived,  and  their  requirement  was  there  designed  to  secure  the 


218  MEANS    OF    ACQUIRING    JURISDICTION. 

and  settled  practice  of  the  state  operating  on  all  alike,  it 
is  not  in  violation  of  the  constitution.'  Therefore,  where 
a  party  is  not  by  the  law  and  settled  practice  of  a  state 
entitled  to  a  trial  by  jury,  in  a  common  law  case,  to  deny 
him  such  a  trial  does  not  deprive  him  of  his  rights  with- 

subject  against  the  arljitrary  action  of  the  crown,  and  place  him  under 
the  protection  of  the  law.  They  were  deemed  to  be  equivalent  to  '  the 
law  of  the  land.'  In  this  country  the  requirement  is  intended  to  have  a 
similar  effect  against  legislative  power;  that  is,  to  secure  the  citizen 
against  any  arbitrary  deprivation  of  his  rights,  whether  relating  to  his 
life,  his  liberty,  or  his  property.  Legislation  must  necessarily  vary  with 
the  different  objects  upon  which  it  is  designed  to  operate.  It  is  suffi- 
cient, for  the  purposes  of  this  case,  to  say  that  legislation  is  not  open  to 
the  charge  of  depriving  one  of  his  rights  without  due  process  of  law,  if 
it  be  general  in  its  operation  upon  the  subjects  to  which  it  relates,  and 
is  enforceable  in  the  usual  modes  established  in  the  administration  of 
government  with  respect  to  kindred  matters ;  that  is  by  process  or  pro- 
ceedings adapted  to  the  nature  of  the  case.  The  great  purpose  of  the 
requirement  is  to  exclude  every  thing  that  is  arbitrary  and  capricious 
in  legislation  affecting  the  rights  of  the  citizen.  As  said  by  this  court 
in  Yick  Wo  v.  Hopkins,  speaking  by  Mr.  Justice  Matthews :  '  When  we 
consider  the  nature  and  the  theory  of  our  institutions  of  government, 
the  principles  upon  which  they  are  supposed  to  rest,  and  review  the 
history  of  their  development,  we  are  constrained  to  conclude  that  they 
do  not  mean  to  leave  room  for  the  play  and  action  of  purely  personal 
and  arbitrary  power.'  118  U.  S.  356,  369;  6  Sup.  Ct.  Rep.  1064.  See 
also,  Pennoyer  v.  Neff,  95  U.  S.  714,  733 ;  Davidson  v.  New  Orleans,  96 
U.  S.  97,  104,  107;  Hurtado  v.  California,  110  U.  S.  516;  4  Sup.  Ct.  Rep. 
Ill ;  Railroad  Co.  v.  Humes,  115  U.  S.  512,  519;  6  Sup.  Ct.  Rep.  110." 

1  Holman  v.  Manning,  65  N.  H.  228 ;  19  Atl.  Rep.  1002 ;  Caldwell  v. 
State,  137  U.  S.  692;  11  Sup.  Ct.  Rep.  224. 

In  Caldwell  v.  State,  137  U.  S.  692;  11  Sup.  Ct.  Rep.  226,  the  court, 
speaking  through  Mr.  Chief  Justice  Fuller,  said : 

"  By  the  fourteenth  amendment  the  powers  of  the  states  in  dealing 
with  crime  within  their  borders  are  not  limited,  but  no  state  can  de- 
prive particular  'persons  or  classes  of  persons  of  equal  and  impartial 
justice  under  the  law.  Law,  in  its  regular  course  of  administration 
through  courts  of  justice,  is  due  process,  and  when  secured  b^  the  law 
of  the  state,  the  constitutional  requisition  is  satisfied.  2  Kent's  Comm. 
13.  And  due  process  is  so  secured  by  laws  operating  on  all  alike,  and 
not  subjecting  the  individual  to  the  arbitrary  exercise  of  the  powers  of 
government,  unrestrained  by  the  established  principles  of  private  right 
and  distributive  justice.  Bank  v.  Okely,  4  Wheat.  235,  244.  The  power 
of  the  state  must  be  exerted  within  the  limits  of  those  principles,  and 
its  exertion  can  not  be  sustained  when  special,  partial,  and  arbitrary. 
Hurtado  v.  California,  110  U.  S.  516,  535  ;  4  Sup.  Ct.  Rep.  Ill,  292." 


DUE    PROCESS    OF    LAW.'  219 

out  due  process  of  law.^  Where  the  property  proceeded 
against  is  within  the  jurisdiction  of  the  court  publication 
of  notice  to  a  non-resident  owner  is  due  process  of  law.^ 
It  is  usually  held  that  a  special  appearance  entered  for  the 
purpose  of  questioning  the  jurisdiction  of  the  court  does 
not  bring  the  defendant  into  court  for  other  purposes  or 
waive  his  right  to  question  the  jurisdiction  of  the  court 
thereafter.^  But  it  has  been  held  that  a  statute  providing 
that  such  an  appearance  by  a  non-resident  defendant  is  a 
voluntary  appearance,  which  brings  him  into  court  for  all 
purposes,  is  not  unconstitutional.*  But  this  is  put  upon 
the  rather  remarkable  ground  that  the  mere  entry  of  a 
judgment  for  money,  ^vhich  is  void  for  w^ant  of  jurisdiction, 
there  being  no  proper  service,  affects  neither  the  liberty 
nor  property  of  a  defendant,  and  that  it  is  only  when  pro- 
cess is  issued  thereon,  or  the  judgment  is  sought  to  be  en- 
forced that  liberty  or  property  is  in  present  danger.^  It  is 
to  be  inferred  from  this  that  while  the  statute  is  held  not 
to  violate  the  constitution,  it  was  regarded  by  the  court  as 
inoperative  for  the  purpose  for  which  it  was  enacted,  and 
that  a  judgment  entered  upon  a  special  appearance  would 
be  invalid  if  the  service  was  in  fact  insufficient  to  give 
jurisdiction.  If,  however,  such  a  statute  has  the  effect  to 
give  the  same  jurisdiction  to  the  court  by  such  special  ap- 
pearance as  a  general  appearance  would  give  this  would 
undoubtedly  render  the  judgment  valid,  and  it  could  not 
be  attacked  for  want  of  jurisdiction  at  a  subsequent  time 
if  attempted  to  be  enforced.^ 

The  legislature  can  not  authorize  an  injunction  against 

1  Walker  v.  Sauvinet,  92  U.  S.  90 ;  Holman  v.  Manning,  65  N.  H.  228 ; 
19  Atl.  Rep.  1002. 

==  Post,  sec.  38;  Huling  r.  Kaw  Val.  Ry.  &  Imp.  Co.,  130  U.  S.  559;  9 
Sup.  Ct.  Rep.  603. 

^  Ante,  sec.  22 ;  post,  sec.  34. 

*  York  f.  State  of  Texas,  137  U.  S.  15;  11  Sup.  Ct.  Rep.  9;  Kaufman 
V.  Wooters,  138  U.  S.  285;  11  Sup.  Ct.  Rep.  298. 

5  Id. 

«  York  V.  State,  73  Tex.  651 ;  11  S.  W.  Rep.  869  ;  Cunningham  v.  State, 
11  S.  W.  Rep.  871. 


220  MEANS    OF    ACQUIRING   JURISDICTION. 

the  use  of  one'g  property  without  a  showing  that  such 
user  is  or  will  be  wrongful  or  injurious,  or  make  that 
wrongful  and  injurious,  by  a  statutory  declaration  to  that 
effect,  which  is  not  so  as  a  matter  of  fact  ;^  or  compel  a 
corporation  to  make  compensation  for  injuries  done  to 
property  in  the  prosecution  of  its  lawful  business,  without 
any  wrong,  fault,  or  neglect  on  its  part,  when  under  the 
general  law  of  the  land  no  one  else  is  so  liable.^ 

But  the  legislature  may  require  the  road  of  a  railroad 
company  to  be  fenced,  and  make  the  failure  to  fence  con- 
clusive evidence  of  negligence  where  stock  is  killed  in  the 
operation  of  its  road.^  It  is  held,  however,  that  where 
there  is  no  law  requiring  a  railroad  company  to  maintain 
a  fence,  a  law  making  its  liability  for  stock  killed  to  de- 
pend upon  whether  a  fence  has  been  maintained  or  not, 
is  unconstitutional.* 

The  legislature  may  provide  what  amount  of  damages 
may  be  recovered  in  excess  of  the  value  of  cattle  killed 
by  a  railroad  company,  where  it  has  failed  to  fence  as  re- 
quired by  statute.^ 

It  is  not  always  necessary  that  opportunity  be  given  a 
party  to  be  heard  before  action  taken  against  his  property. 
In  some  cases,  for  example  in  cases  of  assessment  against 
property,  for  public  improvements  and  the  like,  it  is  suf- 
ficient if  a  party  is  given  the  right  to  have  the  validity  of 
such  assessment  judicially  determined  at  a  subsequent 
time.®     But  a  statute  making  the  action  of  any  officer  or 

'  City  of  Janesville  v.  Carpenter,  77  Wis.  288 ;  46  N.  W.  Rep.  128. 

^  Cottrell  V.  Union  Pac.  Ry.  Co.,  21  Pac.  Rep.  416;  Jenson  v.  Union 
Pac.  Ry.  Co.,  21  Pac.  Rep.  994;  Bielenberg  v.  Montana  U.  Ry.  Co.,  8 
Mont.  271 ;  20  Pac.  Rep.  314. 

»  Ttiorpe  V.  Rutland  &  B.  R.  Co.,  27  Vt.  140 ;  62  Am.  Dec.  625 ;  Min- 
neapolis &  St.  L.  Ry.  Co.  V.  Beckwith,  129  U.  S.  26 ;  9  Sup.  Ct.  Rep.  207 ; 
Missouri  Pac.  Railway  Co.  v.  Humes,  115  U.  S.  512;  6  Sup.  Ct.  Rep.  110; 
Sullivan  v.  Oregon  Ry.  &  Nav.  Co.,  19  Or.  319;  24  Pac.  Rep.  408. 

*  Oregon  Ry.  &  Nav.  Co.  v.  Smalley,  1  Wash.  St.  206 ;  23  Pac.  Rep. 
1008. 

*  Missouri  Pac.  Ry.  Co.  v.  Humes,  115  U.  S.  512 ;  6  Sup.  Ct.  Rep.  110. 

«  McMillan  v.  Anderson,  95  U.  S.  37 ;  State  v.  Certain  Lands,  42  N.  W. 
Rep.  473. 


DUE    PROCESS    OF    LAW.  221 

tribunal  conclusive,  and  not  providing  for  notice  and  op- 
portunity to  be  heard  before  action  taken,  is  void.^ 

Sometimes,  in  cases  of  assessments  for  taxes  and  the 
like,  it  is  sufficient  to  give  notice  to  the  public  generally 
of  the  action  proposed  to  be  taken.  But  such  a  notice  is 
not  sufficient  where  action  is  to  be  taken  against  some  in- 
dividual tax-payer,  and  affecting  his  property  alone. 
Therefore  a  statute  authorizing  such  individual  action 
upon  a  general  notice  to  the  public,  is  void.^ 

There  are  certain  police  powers  belonging  to  the  states, 
by  virtue  of  which  they  may  regulate  the  transaction  of 
business,  and  the  use  of  property,  for  the  common  good; 
and  so  long  as  any  interference  by  the  state  with  the  busi- 
ness or  property  of  a  citizen  is  within  such  police  powers, 
it  is  not  a  taking  of  property  without  due  process  of  law.^ 

To  what  extent  a  state  may  go  in  the  exercise  of  its  po- 
lice powers  without  violating  this  and  other  constitutional 
provisions,  can  not  be  stated  with  any  accuracy.  Each 
case  must  necessarily  stand  upon  the  evils  to  be  avoided, 
the  necessities  of  the  case,  and  the  circumstances  sur- 
rounding it.  Without  attempting  a  review  of  the  cases, 
some  of  them  are  cited  in  the  foot-note  as  illustrating  the 
doctrine  and  the  extent  to  which  it  has  been  carried.* 

It  is  held  that  if  the  proceeding  is  such  that  at  common 
law  a  party  would  have  been  entitled  to  a  trial  by  jury,  to 

1  Chicago,  M.  &  St.  P.  Ry.  Co.  r.  State  of  Minnesota,  134  U.  8.  418;  10 
Sup.  Ct.  Rep.  462. 

2  Kuntz  V.  Sumption,  117  Ind.  1 ;  19  N.  E.  Rep.  474. 
'  State  V.  Forcier,  65  N.  H.  42;  17  Atl.  Rep.  577. 

♦  Louisville  &  N.  R.  Co.  v.  Baldwin,  85  Ala.  619 ;  5  So.  Rep.  311 ;  Eilen- 
becker  v.  District  Court  of  Plymouth  Co.,  134  U.  S.  31 ;  10  Sup.  Ct.  Rep. 
424;  People  v.  D'Oench,  18  N.  E.  Rep.  862;  Minneapolis  &  St.  L.  Ry.  Co. 
V.  Beckwith,  129  U.  S.  26 ;  9  Sup.  Ct.  Rep.  207 ;  Western  U.  Tel.  Co.  v. 
Mayor  of  N.  Y.,  38  Fed.  Rep.  552;  People  v.  Budd,  117  X.  Y.  1;  22  N. 
E.  Rep.  670;  Butler  v.  Chambers,  36  Minn.  69;  30  N.  W.  Rep.  308; 
Thorpe  v.  Rutland  &  B.  R.  Co.,  27  Vt.  140;  62  Am.  Dec.  625  Rode- 
macher  r.  Mil.  &  St.  P.  Ry.  Co.,  41  la.  297 ;  20  Am.  Rep.  592 ;  Sullivan  >: 
Oregon  Ry.  &  Nav.  Co.,  19  Or.  319;  24  Pac.  Rep.  408;  In  re  Le  Sing,  43 
Fed.  Rep.  ;^9;  Jamieson  v.  Indiana  Xat.  Gas  Co.,  128  Ind.  555;  28  X.  E. 
Rep.  76;  People  v.  Cipperly,  4  X^.  E.  Rep.  107,  note  ;  Yick  Wo  r.  Hop- 
kins, 118  U.  S.  356;  6  Sup.  Ct.  Rep.  1064. 


222  MEANS    OF    ACQUIRING    JURISDICTION. 

deny  him  such  a  trial  is  to  proceed  against  him,  or  his 
property,  without  due  process  of  law.^  But,  as  we  have 
seen,  tliis  is  not  necessarily  so.  If,  as  is  shown  above  in 
this  section,  a  jury  trial  can  not,  according  to  the  law  and 
settled  practice  of  the  state,  be  demanded,  it  is  not  a  viola- 
tion of  the  constitution  of  the  United  States  to  deny  such 
right  to  any  particular  litigant.  But  if  the  general  law 
of  the  state  gives  the  right  to  a  trial  by  jury,  a  statute 
denying  the  right  to  any  person  or  class  of  persons  is 
clearly  unconstitutional,  not  so  much  because  it  deprives 
the  party  of  due  process  of  law,  as  that  it  denies  to  him 
the  equal  protection  of  the  law.  And,  whatever  may  be 
the  rule  in  the  state  courts,  a  common-law  and  equitable 
cause  of  action  can  not  be  joined  or  blended  in  the  same 
action  in  the  federal  courts,  and  a  party  be  thus  deprived 
of  his  right  to  a  trial  by  jury,  although  such  a  proceeding 
is  authorized  in  the  state  courts  by  the  laws  of  the  state 
in  which  the  federal  court  is  situated.^ 

The  guaranty  of  the  right  of  a  party,  charged  with 
crime,  to  a  trial  by  jury,  found  in  the  federal  and  state 
constitutions,  is  usually  held  to  apply  to  such  crimes,  in- 
cluding certain  misdemeanors,  as  were  triable  by  jury  at 
common  law.^ 

The  legislature  of  a  state  can  not,  by  law,  deprive  a 
party  of  the  right  to  resort  to  the  courts  for  an  adjudica- 
tion of  his  rights.^  But  such  right  may  be  limited  to  a 
reasonable  extent,  especially  as  to  the  time  when  his  rights 
shall  be  asserted  in  the  courts.^ 

So  a  state  may  limit  the  number  of  new  trials  that  may 

1  Dacres  v.  Oregon  Ry.  &  Nav.  Co.,  1  Wash.  St.  525 ;  20  Pac.  Rep.  601  ; 
Scott  V.  Neely,  140  U.  S.  106;  11  Sup.  Ct.  Rep.  712  ;  Bank  of  State  v. 
Cooper,  2  Yerg.  (Tenn.)  599;  24  Am.  Dec.  517;  Callan  v.  Wilson,  127  U. 
S.  540;  8Sup.  Ct.  Rep.  1301. 

2  Scott  V.  Neely,  140  U.  S.  106 ;  11  Sup.  Ct.  Rep.  712. 

3  Callan  v.  Wilson,  127  U.  S.  540 ;  8  Sup.  Ct.  Rep.  1301 ;  People  v.  Pow- 
ell, 87  Cal.  348;  25  Pac.  Rep.  481 ;  Cooley's  Const.  Lira.,  *  p.  319;  Stuart 
V.  Kimball,  43  Mich.  448. 

*  Barron  v.  Burnside,  121  U.  S.  186;  7  Sup.  Ct.  Rep.  931. 

*  Trimble  v.  M'Gee,  112  Ind.  870;  14  N.  E.  Rep.  S3;  Wheeler  v.  Jack- 
son, 137  U.  S.  245;  11  Sup.  Ct.  Rep.  76. 


DUE    PROCESS    OF    LAW,  223 

be  granted  to  the  same  party  in  the  same  action,  because 
of  the  insufficiency  of  the  evidence,  but  not  where  there 
is  no  evidence  to  justify  the  finding  or  verdict  or  where 
there  has  been  error  of  law.^  And  a  remedy  may  be  taken 
away  by  legislation  where  another  remedy  is  available.^ 

Where  one  is  imprisoned  by  virtue  of  a  judgment  of 
commitment  of  a  court  or  judge  not  having  legal  author- 
ity or  jurisdiction  to  render  the  same,  he  is  deprived  of 
his  liberty  without  due  process  of  law.' 

So  where  an  indictment  is  found  by  a  grand  jury  im- 
paneled by  a  court  that  has  no  legal  power  to  impanel  a 
grand  jury.*  But  a  judgment  rendered  by  a  de  facto  judge 
of  a  de  jure  court  is  not  invalid.^  Nor  can  a  judgment  of 
a  state  court  be  attacked  as  depriving  a  party  of  his  prop- 
erty without  due  process  of  law  for  mere  error.^ 

Indictment  or  presentment  by  a  grand  jury  where  a 
party  is  charged  with  a  crime  is  not  essential  to  due 
process  of  law  in  the  state  courts.''  But  whether  the  power 
to  prosecute  by  information,  by  a  district  attorney  or  other 
prosecuting  officer,  can  be  vested  in  such  officer  without 
any  preliminary  hearing  or  investigation,  or  a  finding  of 
probable  cause,  is  very  much  doubted  though  the  question 
has  not  been  determined.^ 

The  guaranty  of  the  federal  constitution  against  accusa- 
tion of  capital  or  infamous  crime,  except  by  indictment  or 
presentment  by  a  grand  jury,  and  for  an  impartial  trial 
by  a  jury  when  thus  accused,  apply  only  to  citizens  and 

1  Louisville  &  X.  R.  Co.  v.  Woodson,  134  U.  S.  614;  10  Sup.  Ct.  Rep. 
628. 

"  Eddy  V.  Township  of  Lee,  73  Mich.  123 ;  40  X.  W.  Rep.  792 ;  Lake 
Sup.  Ship  Canal  Ry.,  etc.,  Co.  v.  School  District,  79  Mich.  351  ;  44  N.  AV. 
Rep.  616;  Quill  v.  Indianapolis,  124  Ind.  292  ;  23  N.  E.  Rep.  788. 

*  In  re  Monroe,  46  Fed.  Rep.  52 ;  In  re  Kelly,  46  Fed.  Rep.  653. 

*  Ex  parte  Farley,  40  Fed.  Rep.  66. 

5  Ante,  sec.  28 ;  Manning  v.  Weeks,  139  U.  S.  504  ;  11  Sup.  Ct.  Rep.  624. 
,  «  Marrow  i;.  Brinkley,  129  U.  S.  178;  9  Sup.  Ct.  Rep.  267;  Davis  f. 
State,  139  U.  S.  6ol ;  11  Sup.  Ct.  Rep.  675. 

'  Hurtado  r.  People,  110  U.  S.  516;  4  Sup.  Ct.  Rep.  Ill,  295;  In  re 
Humason,  46  Fed.  Rep.  388 ;  Rowan  v.  State,  30  Wis.  129,  144 ,  11  Am. 
Rep.  559. 

*  In  re  Humason,  46  Fed.  Rep.  388. 


224  MEANS    OF    ACQUIRING    JURISDICTION. 

others  within  the  United  States,  or  who  are  brought  there 
for  trial  for  alleged  offenses  committed  abroad,  and  has  no 
operation  in  another  country  although  the  trial  of  the  ac- 
cused may  be  had  in  a  foreign  country  before  a  tribunal 
created  by  and  acting  under  the  laws  of  the  United  States, 
and  under  treaty  with  such  foreign  country/ 

The  trial  and  commitment  of  one  who  has  already  been 
tried  and  acquitted  of  the  same  offense  is  depriving  him 
of  his  liberty  without  due  process  of  law.^ 

The  states  have  the  power  to  change  the  procedure,  and 
the  remedy,  and  the  courts  to  which  resort  may  be  had  to 
enforce  one's  rights ;  and  such  changes,  made  after  the 
cause  of  action  arose,  do  not,  unless  they  deprive  a  party 
of  some  substantial  right  already  vested,  deprive  him  of 
due  process  of  law.^  So  new  rules  of  evidence,  that  do 
not  destroy  or  affect  vested  interests,  may  be  established.* 

A  statute  depriving  a  party  of  the  right  to  transmit  his 
property  by  inheritance  deprives  him  of  his  property 
without  due  process  of  law.^ 

A  statute  authorizing  one  who  has  made  improvements 
in  the  channel  of  a  river  to  charge  tolls  for  the  use  of  the 
river  thus  improved,  is  not  an  imposition  of  a  tax  upon 
persons  using  the  river  or  a  taking  of  their  property  with- 
out due  process  of  law.^ 

Nor  does  the  prohibition  of  the  manufacture  of  intoxi- 
cating liquors,  or  any  other  article  or  commodity  which 
has  the  effect  to  render  the  property  of  one  engaged  in 

1  Ross  V.  Mclntyre,  140  U.  S.  453 ;  11  Sup.  Ct.  Rep.  897. 

"^  Ex  parte  Ulrich,  42  Fed.  Rep.  587. 

3  State  t'.  Jackson,  105  Mo.  196;  16  S.  W.  Rep.  829;  Cooley's  Const. 
Lim.,  «  p.  272;  Caldwell  v.  State,  28  Tex.  App.  566  ,  14  S.  W.  Rep.  122  ; 
Rowan  v.  State,  30  Wis.  129,  144 ;  11  Am.  Rep.  559 ;  Wolf  v.  State,  19 
Ohio  St.  248,  254 ;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Wallace,  26  N.  E.  Rep. 
493. 

*  People  V.  Ryder,  12  N.  Y.  Sup.  48 ;  58  Hun,  407 ;  People  v.  Eddy,  Id. 
628 ;  59  Hun,  615. 

*  Debrell  v.  Morris,  15  S.  W.  Rep.  87. 

«  Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.  228;  8  Sup.  Ct.  Rep. 
113. 


APPEARANCE  AND  ITS  EFFECTS.  225 

such  manufacture  useless,  or  less  valuable,  amount  to  a 
taking  of  such  property  without  due  process  of  law.^ 

34.  Appearance  and  its  effects. — Appearance  is  the 
coming  into  court  as  a  party  to  a  suit  either  in  person  or 
by  attorney  or  other  person  authorized  to  enter  or  make 
such  appearance.^ 

It  may  be  general,  which  is  a  submission  of  the  person 
to  the  jurisdiction  of  the  court  for  all  purposes  of  the  ac- 
tion,^ or  special,  for  the  purpose  of  questioning  the  juris- 
diction of  the  court,  which  submits  the  person  to  the  juris- 
diction of  the  court,  only  so  far  as  to  authorize  it  to 
rule  upon  the  question  raised,  whether  it  be  presented  by 
motion  or  by  pleading  to  the  jurisdiction.^ 

It  may  also  be  either  voluntary,  where  it  is  entered  freely, 
compulsory,  where  it  is  compelled  by  plaintiff's  action,  or 
optional,  where  it  is  made  by  one  not  called  upon  to  ap- 
pear, but  who  applies  to  do  so  to  save  a  right.^ 

An  appearance  may  be  in  person,  by  attorney,  by  next 
friend,  by  guardian,  or  by  committee,  depending  upon 
whether  the  party  himself  defends,  or  employs,  or  is  repre- 
sented by,  another.^ 

A  party  enters  a  general  appearance  when  he  enters  the 
same  on  the  records  of  the  court,  or  causes  it  to  be  done, 
without  qualifying  the  appearance,  or  limiting  it  to  a  pur- 
pose for  which  a  special  appearance  is  permitted,  or  by 
entering  bail,  demurrer,  answer  to  the  merits,  or  any  other 
act  admitting  that  the  party  is  in  court  submitting  to  the 
jurisdiction.^ 

1  Mugler  r.  Kansas,  123  U.  S.  623 ;  8  Sup.  Ct.  Rep.  273 ;  Powell  v. 
Pennsylvania,  127  U.  S.  678 ;  8  Sup.  Ct.  Rep.  992,  1257. 

^  Anderson's  Die.  of  Law,  65 ;  ante,  sec.  13.        '  Arde,  sees.  13,  22. 

*  Ante,  sees.  13,  22;  Kinkade  r.  Myers,  17  Or.  470;  21  Pac.  Rep.  557; 
Williamson  r.  McCormick,  126  Pa.  St.  274;  17  Atl.  Rep.  591. 

'  Anderson's  Die.  of  Law,  65. 

*  Anderson's  Die.  of  Law,  65  ;  Grantierr.  Rosecrance,  27  Wis.  488,  491  ; 
German  Mut.,  etc..  Fire  Ins.  Co.  v.  Decker,  74  Wis.  556 ;  43  N.  W.  Rep. 
500 ;  Lyons  v.  Planters'  Loan  and  Savings  Bank,  86  Ga.  485 ;  12  S.  E. 
Rep.  882. 

15 


226  MEANS    OF    ACQUIRING   JURISDICTION. 

So  where  a  party  consents  to  the  making  of  an  order  by 
the  court,^  But  in  order  to  constitute  an  appearance  the 
act  must  be  done  in  court.  The  filing  of  a  motion  out 
of  term  time,  and  never  brought  before  the  court,  is  not 
an  appearance.^  And  it  must  be  the  act  of  the  party  or 
his  attorney.  An  entry  by  the  clerk  that  some  act  has 
been  done  that  would  constitute  an  appearance  may  be 
evidence  of  the  fact,  but  it  is  not  the  act  itself.^ 

Whether  an  appearance  for  the  removal  of  a  cause  from 
a  state  court  to  a  federal  court  is  such  an  appearance  as 
will  give  jurisdiction  and  waive  want  of,  or  defects  in,  serv- 
ice, is  left  in  uncertainty  by  the  decisions  of  the  federal 
courts.  It  was  held  under  the  twelfth  section  of  the  ju- 
diciary act  of  1789  that  by  petitioning  for  a  removal  the 
defendant  waived  service  of  process.^ 

Under  the  later  removal  acts  it  is  held  in  some  of  the 
cases  that  a  party  does  not,  by  appearing  specially  in  the 
state  court  for  that  purpose,  and  filing  his  petition  and 
bond  for  removal,  cut  off  his  right  to  contest  the  suffi- 
ciency of  the  service  in  the  federal  court.^ 

In  others,  it  is  held  that  the  party  must,  in  order  to  save 
his  right  to  contest  the  service,  or  the  jurisdiction  of  the 
court  for  want  of  service,  first  make  his  objection  in  the 
state  court  before  asking  for  the  removal,  and  if  he  does 
not  his  appearance  and  petitioning  for  such  removal  waives 
the  objection.^ 

With  the  authorities  in  this  uncertain  state  it  is  impos- 
sible to  say  what  conclusion  will  be  finally  reached.  It 
seems  to  be  settled,  however,  that  if  the  objection  to  the 
service  is  properly  made  in  the  state  court,  a  subsequent 

1  Auspach  V.  Ferguson,  71  la.  144 ;  32  N.  W.  Eep.  249. 

^  Todd  V.  Be  La  Mott,  9  Col.  222  ;  11  Pac.  Rep.  90. 

^  Rhoades  r.  Delaney,  50  Ind.  468;  1  Black  on  Judg.,  sec.  225. 

*  Sayles  v.  Insurance  Co.,  2  Curt.  212  ;  Bushnell  v.  Kennedy,  9  Wall. 
387  ;  Reifsnider  v.  American  Imp.  Pub.  Co.,  45  Fed.  433. 

^  Atchison  v.  Morris,  11  Fed.  Rep.  582 ;  Small  v.  Montgomery  17  Fed. 
Rep.  865 ;  Reifsinder  v.  American  Imp.  Pub.  Co.,  45  Fed.  Rep.  433,  and 
cases  cited ;  Clews  v.  Woodstock  Iron  Co.,  44  Fed.  Rep.  31 ;  Heudrickson 
V.  Railroad  Co.,  22  Fed.  Rep.  569 ;  Perkins  v.  Hendryx,  40  Fed.  Rep.  657. 

^  Tallman  v.  Baltimore  &  O.  R.  Co.,  45  Fed.  Rep.  156,  and  cases  cited. 


APPEARANCE  AND  ITS  EFFECTS.  227 

application  for  removal  will  not  deprive  the  party  of  the 
riffht  to  renew  it  in  the  federal  court.^  It  was  held  in  one 
case  that  a  formal  appearance  by  a  defendant  in  a  federal 
court,  entered  on  the  tirst  rule  day,  followed  on  the  second 
rule  day  by  an  objection  that  he  was  sued  in  the  wrong 
district,  was  not,  under  the  circumstances,  such  an  appear- 
ance as  would  waive  service  of  process.^  But  the  doctrine 
laid  down  in  this  case  has  been  expressly  repudiated,  with 
the  statement  that  with  the  exception  of  that  case  no  au- 
thority in  support  of  it  is  found  in  the  decisions  of  the 
federal  courts.^  A  party  may,  in  a  proper  case,  be  per- 
mitted to  amend  his  notice  of  appearance  so  as  to  change  it 
from  a  general  to  a  special  appearance.*  Where  a  motion 
which  attacks  the  jurisdiction  of  the  court  over  the  per- 
son, made  upon  a  special  appearance  for  that  purpose,  is 
pending,  and  the  party  pleads  to  the  merits,  or  does  any 
other  act  that  amounts  to  a  general  appearance,  his  pend- 
ing objection  to  the  jurisdiction  of  the  court  is  waived.^ 
And  the  subsequent  withdrawal  of  such  pleading  does  not 
affect  the  question.  The  filing  of  the  pleading  vests  the 
court  with  jurisdiction,  and  it  can  not  be  taken  away  by 
withdrawing  the  pleading,  although  done  with  the  leave 
of  the  court.^  A  party  may,  by  his  conduct,  be  estopped 
to  deny  that  he  is  or  was  in  court.^  !N'ot  only  is  the  want 
of  proper  service  of  process  waived  by  a  general  appear- 
ance, but  the  objection  that  the  party  is  not  within  the 
territorial  jurisdiction  of  the  court  in  a  transitory  action 
is  waived  in  the  same  way.*    In  some  states  it  is  so  provided 

'  Kauffman  v.  Kennedy,  25  Fed.  Rep.  785 ;  Miner  v.  Markham,  28 
Fed.  Rep.  387 ;  Hendric'kson  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  22  Fed. 
Rep.  569. 

^  Reinstadler  v.  Reeves,  33  Fed.  Rep.  308. 

'  Foote  V.  Massachusetts  Ben.  Ass'n,  39  Fed.  Rep.  23. 

*  Hohorst  V.  Hamburg,  etc..  Packet  Co.,  38  Fed.  Rep.  273. 

5  Evans  v.  lies,  7  Ohio  St.  234 ;  Denver  &  R.  G.  Ry.  Co.  v.  Neis,  10 
Colo.  5G ;  14  Pac.  Rep.  105. 

«  Evans  v.  lies,  7  Ohio  St.  234. 

'  Corinne,  etc.,  Co.  v.  Johnston,  5  Utah,  147  ;  13  Pac.  Rep.  17. 

'  Auspach  V.  Ferguson,  71  la.  144 ;  32  N.  W.  Rep.  249 ;  Friezen  v.  Al- 
lemania  F.  Ins.  Co.,  30  Fed.  Rep.  349;  Foote  v.  Massachusetts  Ben. 


228  MEANS    OF    ACQUIRING   JURISDICTION, 

by  statute.^  It  is  otherwise  if  the  jurisdiction  of  the  sub- 
ject-matter depends  upon  whether  the  property  is  within 
the  territorial  jurisdiction  of  the  court  or  not,  as,  in  that 
case,  the  question  would  be  as  to  the  jurisdiction  of  the 
subject-matter,  and  not  of  the  person;  and  consent,  by  an 
appearance,  would  not  give  jurisdiction.  But  it  is  held  that 
the  right  to  have  a  cause  affecting  title  to  real  estate  tried 
in  the  county  in  which  the  land  is  situated  is  a  mere  priv- 
ilege that  may  be  waived.^  And  sometimes  service  of  pro- 
cess within  the  territorial  jurisdiction  of  the  court  is  nec- 
essary to  give  it  jurisdiction  of  the  subject-matter.  In 
such  case  jurisdiction  can  not  be  given  by  an  appearance.^ 
The  objection  that  the  cause  has  not  been  transferred  to 
the  court  in  such  way  as  to  give  it  jurisdiction  is  waived 
by  an  appearance.*  A  special  appearance  is  made  by  mak- 
ing some  motion,  or  filing  some  pleading,  the  eflect  of 
which  is  to  deny  or  contest  the  fact  that  the  party  is  in 
court,  and  contesting  its  jurisdiction  over  his  person.^  In 
making  a  special  appearance,  the  purpose  of  such  appear- 
ance must  be  stated,  and  it  must  be  confined  and  limited 
to  jurisdictional  matters.^ 

But  under  the  codes  of  some  of  the  states  the  question 
may  be  raised  by  answer,  and  the  effect  is  the  same  as  if 
raised  by  plea  or  motion.^  Therefore,  if  a  party  pleads  to 
the  jurisdiction  of  the  court  over  his  person,  but  at  the 

Ass'n,  39  Fed.  Rep.  23 ;  Jones  v.  Andrews,  10  Wall.  327 ;  Atkins  v.  Fi- 
ber Disintergration  Co.,  18  Wall.  272 ;  Donnelly  v.  Woolsey,  59  Hun. 
618 ;  13  N.  Y.  Sup.  433. 

1  Goldstein  v.  City  of  New  Orleans,  38  Fed.  Rep.  626. 

2  Ante,  sec.  22 ;  Walker  v.  Stroud,  6  S.  W.  Rep.  202  ;  Hazard  v.  Wason, 
152  Mass.  268 ;  25  N.  E.  Rep.  465. 

3Wheelock  v.  Lee,  74  N.  Y.  495;  McCarty  v.  Parker,  14  N.  Y. 
Sup.  128. 

*  Hazard  v.  Wason,  152  Mass.  268 ;  25  N.  E.  Rep.  465 ;  Hamrick  v. 
Danville,  etc.,  Gravel  R.  Co.,  32  Ind.  347  ;  Cox  r.  Pruitt,  25  Ind.  90. 

5  Ante,  sees.  13,  22 ;  Green  v.  Green,  42  Kan.  654 ;  22  Pac.  Rep.  730 ; 
Kinkade  i'.  Meyers,  17  Or.  470 ;  21  Pac.  Rep.  557. 

^  Ante,  sees.  13,  22 ;  Grantier  v.  Rosecrance,  27  Wis.  488,  491  ;  Kinkade 
V.  Meyers,  17  Or.  470 ;  21  Pac.  Rep.  557 ;  Bucklin  v.  Strickler,  48  N.  W. 
Rep.  371. 

'  Harkinson  v.  Page,  31  Fed.  Rep.  184. 


APPEARANCE  AND  ITS  EFFECTS.  229 

same  time  pleads  to  the  merits,  which  is  allowed  in  some 
of  the  systems  of  practice,  his  appearance  is  general,  and 
his  objection  to  the  jurisdiction,  although  expressly  made, 
is  waived.^  But  an  application  for  an  extension  of  time 
to  plead  until  the  question  of  jurisdiction  is  determined 
is  not  a  general  appearance.^ 

There  are  cases  holding  that  under  a  system  of  practice 
which  allows  a  pleading  contesting  the  jurisdiction,  and 
one  to  the  merits,  to  be  filed  at  the  same  time,  the  filing 
of  both  does  not  waive  the  issuance  and  service  of  pro- 
cess.' But,  while  the  codes  permit  inconsistent  pleadings 
to  be  filed,  a  party  can  not  be  heard  to  deny  that  he  is  in 
court  while  he  is  asking  the  court  to  exercise  its  powers 
and  adjudicate  a  question  on  the  merits  in  his  favor.* 

And  the  same  rule  applies  where  the  party  moves  to 
vacate  a  judgment  taken  against  him  by  default  on  non- 
jurisdictional  as  well  as  jurisdictional  grounds.^  It  is 
otherwise  when  he  confines  his  motion  to  vacate  the  judg- 
ment to  jurisdictional  grounds,  and  appeals  on  such 
grounds  alone.^ 

It  has  been  held  by  the  Supreme  Court  of  the  United 
States  that  by  pleading  to  the  merits  after  an  ineflectual 
attempt  to  set  aside  an  illegal  service,  does  not  waive  the 
question.^  But  a  distinction  is  made  between  an  illegal 
service  and  an  ordinary  defect  or  want  of  service.^ 

An  appeal,  or  the  entry  of  a  notice  of  appeal,  is  a  sub- 
mission to  the  jurisdiction,  and  waives  a  want  of  proper 

1  Ante,  sees.  13,  22. 

=*  Mulhearn  v.  Press  Pub.  Co.,  20  Atl.  Rep.  760. 

»  Western  &  A.  R.  Co.  v.  Pitts,  79  Ga.  532 ;  4  S.  E.  Rep.  921 ;  Allen 
V.  Miller,  11  Ohio  St.  374. 

*  Cropsey  v.  Wiggenhorn,  3  Neb.  108. 

*  Kaw  Valley  Life  Ass'n  v.  Lemke,  40  Kan.  142  ;  19  Pac.  Rep.  337; 
Burdette  v.  Corgan,  26  Kan.  104  ;  Gran  tier  v.  Rosecrance,  27  Wis.  488, 
491 ;  Alderson  v.  White,  32  Wis.  308  ;  Crowell  v.  Galloway,  3  Neb.  215. 

But  see  Cobbey  v.  Wright,  23  Neb.  2.50  (36  N.  W.  Rep.  505),  which  is 
apparently  the  other  way,  although  the  ground  upon  which  the  judg- 
ment was  asked  to  be  set  aside  does  not  appear. 

«Paxton  V.  Daniell,  1  Wash.  St.  19;  23  Pac.  Rep.  441. 

'  Harkness  v.  Hyde,  98  U.  S.  476. 

8  Ante,  sec.  22 ;  Eddy  v.  Lafayette,  49  Fed.  Rep.  809. 


230  MEANS    OF    ACQUIRING    JURISDICTION. 

service.^  And  it  has  been  held  that  an  appeal  from  a  judg- 
ment void  for  want  of  service  of  process,  places  the  ap- 
pellant in  court,  on  the  return  of  the  case,  for  all  the  pur- 
poses of  the  trial  in  the  court  below.^  But  it  is  difficult 
to  see  upon  what  theory  it  can  be  held  that  where  a  party 
appears  specially  and  objects  to  the  jurisdiction  of  the 
court  on  the  ground  that  he  has  not  been  served  with  pro- 
cess, and  appeals  on  that  question  alone,  the  appeal  places 
him  in  court  for  any  other  purpose  than  to  contest  that 
question.  If  he  appeals  from  a  decision  against  him,  and 
his  appeal  is  sustained,  this  is  a  determination  that  he  was 
not  in  court,  and  upon  a  return  of  the  case  he  should  be 
in  precisely  the  same  position  as  if  the  court  below  had 
sustained  his  objection  to  the  jurisdiction.^ 

It  is  held  that  a  party  may  preserve  his  right  by  a  "  pe- 
tition in  error "  to  the  appellate  court.*  But  in  some  of 
the  states  writs  of  error  are  abolished,  and  the  only  mode 
of  presenting  the  question  to  the  appellate  court  is  by  ap- 
peal, or  by  some  appropriate  writ  by  which  the  jurisdic- 
tion may  be  questioned.  The  theory  of  the  cases  in  which 
it  is  held  that  the  appeal  is  a  waiver  of  the  objection  is 
that  by  appealing  the  party  admits,  by  the  obligation  of 
his  appeal  bond,  that  there  is  a  valid  judgment  against 
him.*  But  this  can  not  justly  be  held  where  the  sole  basis 
of  the  appeal  is  an  erroneous  ruling  against  the  party  upon 
his  objection  to  the  jurisdiction.  Notwithstanding  these 
decisions,  the  better  rule  is  believed  to  be  that  where  the 
appearance  below  is  special,  and  the  only  question  pre- 
ented  and  decided  is  jurisdictional,  and  the  appeal  is  on 
that   ground  alone,  the  party  is  never  in  court  for  any 

1  Fee  V.  Big  Sand  Iron  Co.,  13  Ohio  St.  563 ;  Colorado  Cent.  Ry.  Co. 
V.  Caldwell,  11  Colo.  545;  19  Pac.  Eep.  542;  Dikeman  v.  Mrotek,  76 
Wis.  332;  45  N.  W.  Rep.  118;  Dunn  v.  Haines,  17  Neb.  560;  23  N.  W. 
Rep.  501;  Waggoner  v.  Fogleman,  53  Ark.  181,   13  S.  W.  Rep.  729. 

2  Chesapeake,  O.  &  S.  W.  R.  Co.  v.  Heath,  87  Ky.  651 ;  9  S.  W.  Rep. 
832. 

3  Amte,  sec.  22 ;  Paxton  v.  Daniell,  1  Wash.  St.  19 ;  23  Pac  Rep.  441 ; 
Mills  V.  State,  10  Ind.  114 ;  Briggs  v.  Sneghan,  45  Ind.  14 ;  Todd  v.  De 
La  Mott,  9  Colo.  222 ;  11  Pac.  Rep.  90. 

*  Dunn  V.  Haines,  17  Neb.  560 ;  23  N.  W.  Rep.  501. 


APPEARANCE  AND  ITS  EFFECTS.  231 

other  purpose  than  to  obtain  a  decision  from  the  appellate, 
as  well  as  the  trial  court,  of  that  question.  And  that  a 
decision  in  his  favor,  by  either  court,  places  him  out  of 
court  for  all  purposes. 

The  result  of  the  cases  holding  to  the  contrary  should 
be  sufficient  to  support  this  conclusion.  That  the  party  is 
entitled  to  a  reversal  if  the  ruling  against  him  on  the  ju- 
risdictional question  is  conceded,  but  by  the  act  necessary 
to  obtain  a  ruling  of  the  appellate  court  in  his  favor  the 
effect  of  such  a  decision  is  totally  destroyed.  By  taking 
the  steps  necessary  to  obtain  a  decision  that  he  is  not  in 
court,  he  is  held  to  place  himself  in  court.^ 

A  party  can  not  make  an  appearance  special,  by  so  de- 
nominating it,  if  the  act  done  really  amounts  to  a  general 
appearance.^ 

So  if  a  party  enters  a  special  appearance,  and  contests 
the  jurisdiction  of  the  court,  but  his  objection  is  overruled 
and  he  thereafter  pleads  to  the  merits,  or  does  any  other 
act  that  can  only  be  done  by  one  in  court,  his  objection 
to  the  jurisdiction  of  the  court,  although  erroneously  over- 
ruled, is  thereby  waived.^ 

There  are  cases  holding  that  a  party  does  not  waive  de- 
fects in  service  by  answering  to  the  merits  after  his  objec- 
tion to  the  service  has  been  overruled.*  But  the  weight 
of  authority  is  clearly  the  other  way.  It  is  the  same  where 
his  motion  to  quash  is  sustained.^     But  this  rule  has  been 

1  Chesapeake,  O.  &  S.  W.  R.  Co.  v.  Heath,  87  Ky.  651;  9  S.  W.  Rep. 
832 ;  Harkness  v.  Hyde,  98  U.  S.  476 ;  Waggoner  v.  Fogleman,  53  Ark. 
181 ;  13  S.  W.  Rep.  729. 

^  Kaw  Valley  Life  Ass'n  v.  Lemke,  40  Kan.  142 ;  19  Pac.  Rep.  337  ;  Bur- 
dette  V.  Corgan,  26  Kan.  104 ;  Grantier  v.  Rosecrance,  27  Wis.  488,  491 ; 
Dikeman  v.  Mrotek,  76  Wis.  332;  45  N.  W.  Rep.  118;  Suggr.  Thornton, 
132  U.  S.  524;  10  Sup.  Ct.  Rep.  163. 

3  Ante,  sec.  22;  Dailey  v.  Kennedy,  64  Mich.  208;  31  N.  W.  Rep.  125  ; 
Union  Pac.  Ry.  Co.  v.  De  Busk,  12  Col.  294 ;  20  Pac.  Rep.  752 ;  Walker 
V.  Turner,  27  Neb.  103;  42  N.  W.  Rep.  918;  Sugg  v.  Thornton,  132  U.  S. 
524 ;  10  Sup.  Ct.  Rep.  163  ;  Sealy  v.  California  Lumber  Co.,  19  Or.  94 ;  24 
Pac.  Rep.  197. 

*  Deidesheimer  v.  Brown,  8  Cal.  340 ;  Ford  v.  Doyle,  44  Id.  635.  , 

^  Lente  v.  Clarke,  22  Fla.  515 ;  1  So.  Rep.  149. 


232  MEANS   OF    ACQUIRING   JURISDICTION. 

held  not  to  apply  to  a  case  where  the  service  was  made  in 
a  place  where  it  could  not  legally  be  made.^ 

A  party  does  not  submit  himself  to  the  jurisdiction  of 
the  court  by  setting  up,  by  way  of  answer,  that  the  serv- 
ice upon  him  was  procured  by  fraud  and  contesting  the 
jurisdiction  on  that  ground.- 

The  fact  that  the  process  was  void,  and  that  the  de- 
fendant was  ignorant  of  it,  at  the  time,  will  not  change 
the  effect  of  his  appearance  to  the  action.^ 

Submission  to  the  jurisdiction  of  the  court  can  not  give 
the  court  jurisdiction  over  the  subject-matter.*  And,  in 
some  of  the  states,  it  is  provided  by  statute  that  a  special 
appearance  to  contest  the  jurisdiction  of  the  court,  on  the 
ground  that  there  has  not  been  proper  service  of  process, 
shall  constitute  an  appearance  to  the  action.^  And  such 
a  statute  has  been  held  to  apply  to  a  non-resident  defend- 
ant served  out  of  the  state.^  These  are  most  remarkable 
statutes,  but  they  have  been  held  not  to  deprive  a  party 
of  his  property  without  due  process  of  law.^  But  the  su- 
preme court  of  the  United  States  is  careful  not  to  hold 
that  a  judgment  based  upon  such  an  appearance,  under 
such  a  statute,  can  be  enforced.  But,  if  it  can  not,  it  is  a 
proceeding  without  due  process  of  law,  whether  it  is  a 
present  taking  of  property  or  not.^ 

In  the  codes  of  most  of  the  states  it  is  expressly  pro- 
vided what  shall  constitute  an  appearance,  but  they  are, 
as  a  rule,  only  declaratory  of  what  the  law  is  without  such 
statutory  provisions. 

In  some  cases  it  has  been  held  that  an  act  that  would, 
under  the   authorities,  amount   to  a  general   appearance 

1  Ante,  sec.  22;  Harkness  v.  Hyde,  98  U.  S.  476,  479. 

2  Chubbuck  v.  Cleveland,  37  Minn.  466 ;  35  N.  W.  Rep.  362. 

3  Pixley  V.  Winchell,  7  Cowen  (N.  Y.),  366;  17  Am.  Dec.  525. 

*  Perkins  v.  Perkins,  7  Conn.  558;  18  Am.  Dec.  120. 

*  Ante,  sees.  13,  33 ;  Church  v.  Grossman,  49  la.  444 ;  Eabb  v.  Rogers, 
67  Tex.  335;  3  S.  W.  Rep.  303;  Central  &  M.  R.  Co.  v.  Morris,  68  Tex. 
49 ;  3  S.  W.  Rep.  457. 

«  York  V.  State,  73  Tex.  651 ;  11  S.  W.  Rep.  869 ;  Sam  v.  Hochstadter, 
76  Tex.  162 ;  13  S.  W.  Rep.  535. 
'  Ante,  sec.  33. 


APPEARANCE  AND  ITS  EFFECTS.  233 

was  not  so  because  not  one  of  the  acts  mentioned  in  the 
statute  providing  what  would  constitute  an  appearance.' 
But  it  is  believed  that  an  unequivocal  act  of  submission  to 
the  jurisdiction  of  the  court  would  bind  a  part}^,  although 
such  act  is  not  named  in  the  statute  as  constituting  an  ap.- 
pearance,  unless  the  statute  contains  some  negative  pro- 
vision, or  in  some  way  indicates  an  intention  to  confine  the 
acts  constituting  an  appearance  to  the  ones  mentioned. 
However,  where  a  party  is  himself  asserting  a  right  on 
the  ground  that  he  has  appeared  to  the  action,  he  must 
show  such  an  appearance  as  the  statute  requires.^ 

The  effect  of  an  unauthorized  appearance  by  an  at- 
torney has  been  considered  in  another  place.^  An  attorney 
may  be  allowed  to  withdraw  his  appearance,  but  this  does 
not  change  the  effect  of  such  appearance  as  a  waiver  of 
service  of  process  by  the  party.*  It  has  been  held,  how- 
ever, that  a  withdrawal  of  appearance  by  an  attorney 
withdraws  all  pleadings  filed  on  behalf  of  the  party  he 
represents,  and  leaves  the  case  as  if  no  appearance  had 
ever  been  entered ;  and  that,  therefore,  service  of  process 
must  be  shown.^  And  that,  for  that  reason,  the  court  may, 
in  its  discretion,  refuse  to  allow  a  withdrawal  of  appear- 
ance where  there  has  been  no  service  of  process.^  The  ef- 
fect of  a  general  appearance  is  to  subject  the  party  to  the 
jurisdiction  of  the  court  the  same  as  if  he  had  been  regu- 
larly served  with  process  issued  from  a  court  having  the 
power  to  obtain  jurisdiction  by  the  issuance  and  service  of 
its  process.^     But  where  the  proceeding  is  one  auxiliary  to 

'  Powers  V.  Braly,  75  Cal.  237 ;  17  Pac.  Rep.  197. 

^  McCoy  V.  Bell,  1  Wash.  St.  504;  20  Pac.  Rep.  595. 

^  Ante,  sec.  13;  but  see  further  on  this  subject,  Phelps  v.  Brewer,  9 
Cush.  390 ;  57  Am.  Dec.  56  ;  Williams  v.  Neth,  31  N.  W.  Rep.  630  ;  Bun- 
ton  V.  Lyford,  37  N.  H.  512 ;  75  Am.  Dec.  144,  148,  note ;  Mutual  Life 
Ins.  Co.  v.  Pinner,  43  N.  J.  Eq.  52 ;  10  Atl.  Rep.  184 ;  Carroll  v.  Lee,  3 
Gill.  &  John.  (Md.)  504;  22  Am.  Dec.  350;  First  Nat'l  Bank  v.  Grimes 
Dry  Goods  Co.,  45  Kan.  510;  26  Pac.  Rep.  56. 

*  United  States  v.  Yates,  6  How.  605. 

^  Young  V.  Dickey,  63  Ind.  31.  « Id. 

'  Ante,  sees.  13,  22;  Dailey  v.  Kennedy,  64  Mich.  208 ;  31  N.  W.  Rep. 
125;  Reed  v.  Gates,  11  Colo.  527;  19  Pac.  Rep.  464;  Atkins  v.  Fiber  Dis- 


234  MEANS   OF    ACQUIRING   JURISDICTION. 

the  main  action,  the  purpose  of  which  is  to  reach  prop- 
erty belonging  to  the  defendant,  and  certain  steps  are 
necessary  to  obtain  jurisdiction  of  the  property,  it  is  held, 
in  some  of  the  cases,  that  an  appearance  to  the  main  ac- 
tion, by  which  the  court  is  authorized  to  render  a  personal 
judgment  against  the  defendant,  does  not  give  the  court 
jurisdiction  of  the  property  or  waive  the  right  of  the 
party  to  contest  such  jurisdiction.^  In  order  to  give  juris- 
diction over  the  person  of  a  minor,  he  must  be  served 
with  process.  It  can  not  be  given  by  an  appearance  by 
him,  or  by  any  one  representing  him.^  It  is  held,  how- 
ever, that  a  statutory  guardian  may  appear  and  answer 
for  his  ward  without  service  of  process.*  A  special  ap- 
pearance to  contest  the  jurisdiction  of  the  court  does  not 
give  the  court  jurisdiction.* 

35.  Nature  and  different  kinds  of  original  process. — 
Original  process,  in  the  sense  in  which  we  are  now  to 
consider  it,  was,  at  common  law,  the  means  of  compelling 
a  defendant  to  come  into  court.^  Under  the  practice  of 
the  present  day  it  may  be  defined  as  the  means  of  notify- 
ing the  defendant  of  the  commencement  of  an  action  or 
proceeding  against  him  or  his  property,  and  that  if  he 
does  not  appear,  judgment  will  be  taken  for  the  relief  de- 
manded. It  has  been  defined  as  "a  form  of  proceeding 
taken  in  a  court  of  justice  for  the  purpose  of  giving  com- 
pulsory effect  to  its  jurisdiction."  ® 

At  common  law  an  action  was  commenced  by  the  issu- 
ance of  the  original  writ  out  of  the  court  of  chancery. 
The  original  writ  was  defined  as  "a  mandatory  letter  from 
the  king,  in  parchment,  sealed  with  his  great  seal,  and  di- 

intergating  Co.,  18  Wall.  272;  Kinkade  v.  Meyers,  17  Or.  470;  21  Pac. 
Eep.  557. 
^  Ante,  sec.  14 ;  Noyes  v.  Canada,  30  Fed.  Rep.  665. 

2  Ante,  sec.  13;  Carver  t).  Carver,  64  Ind.  194;  Helmes  v.  Chadbourne, 
45  Wis.  60 ;  Roy  v.  Rowe,  90  Ind.  54.  But  see  on  this  question,  Simmons 
V.  Baynard,  30  Fed.  Rep.  532. 

3  Curry  v.  Curry,  87  Ky.  667;  9  S.  W.  Rep.  831. 

*  Ante,  sees.  13,  22;  Branner  v.  Chapman,  11  Kan.  118. 

s  3  Bl.  Com.  279.  *  Foulke's  Ac.  in  Sup.  Ct.  50. 


NATURE,  ETC.,  OF    ORIGINAL    PROCESS.  235 

rected  to  the  sheriff  of  the  county  wherein  the  injury  is 
committed  or  supposed  so  to  be,  requiring  him  to  command 
the  wrong-doer,  or  party  accused,  either  to  do  justice  to 
complainant,  or  else  to  appear  iu  court  and  answer  the  ac- 
cusation against  him."  ^ 

This  writ  was  the  foundation  of  the  suit.  It  was  fol- 
lowed by  what  was  called  the  process  which  was  the 
means  of  compelling  the  defendant  to  comply  with  the 
original  writ  and  ap})ear  in  court  or  do  justice  to  the 
complainant.^ 

The  first  of  these  was  a  notice  to  the  defendant  to  obey 
the  original  writ  and  called  a  summons.  If  this  was  not 
obeyed,  an  attachment  was  issued  against  the  defendant's 
property,  followed  by  the  writ  oi  distringas  which  required 
the  sheriff  to  continue  to  distrain  the  defendant  by  taking 
his  goods  and  the  issues  of  his  lands  until  he  rendered 
obedience  to  the  original  writ.^ 

In  actions  for  forcible  injuries  various  writs  against  the 
person  of  the  defendant,  not  necessary  to  enumerate,  were 
resorted  to.* 

In  equity  the  first  process  was  a  subpena,  which  was  a 
writ  "  commanding  the  defendant  to  appear  and -answer 
to  the  bill  on  pain  of  £100."  If  the  defendant  did  not 
appear  in  response  to  the  subpena,  he  was  then  in  con- 
tempt, and  the  writs  of  attachment  and  attachment  with 
proclamation  followed.  If  they  failed  to  produce  the  de- 
fendant in  court,  a  commission  of  rebellion  was  awarded 
against  him  for  not  obeying  the  king's  proclamation,  four 
commissioners  being  named  whose  duty  it  was  to  attach 
the  defendant  wherever  found  in  Great  Britain.  If  this 
failed,  a  sergeant-at-arms  was  sent  in  quest  of  him,  and, 
if  the  defendant  eluded  his  search,  then  sequestration  is- 
sued to  seize  all  of  his  personal  estate  and  the  issues  of 
his  real  estate.  If  the  defendant  was  taken  upon  any  of 
the  process,  he  was  committed  to  prison  until  he  put  in  an 
appearance,  or  answer,  or  performed  whatever  else   the 

1  3  Bl.  Com.  273.  '  3  Bl.  Com.  279.  ^  3  ^l.  Com.  279,  280. 

*  3  Bl.  Com.  281. 


236  MEANS    OF    ACQUIRING    JURISDICTION. 

process  was  issued  to  enforce  and  paid  the  costs  which  the 
plaintifl*  had  incurred  thereby.^ 

It  will  thus  be  seen  that  the  object  of  process  in  both 
common  law  and  equity  courts  was  to  compel  a  defendant 
to  appear,  or  do  justice. 

The  mode  of  procedure  of  the  two  courts  ditfered 
mainly  in  this  :  The  common-law  courts,  in  order  to  en- 
force obedience  to  the  original  writ,  proceeded  against  the 
property  of  the  defendant,  while  the  process  of  the  courts 
of  equity  was  directed  primarily  against  his  person.^ 

In  actions  for  injuries  without  force  the  common-law 
courts  could  not  deprive  a  defendant  of  his  liberty  to  com- 
pel him  to  appear.  By  treating  his  failure  to  respond  to 
the  subpena  a  contempt,  a  court  of  equity  proceeded 
against  his  person  first,  and,  if  that  failed,  his  property 
was  sequestered  and  held  subject  to  the  order  of  the 
court. 

Under  the  civil  law,  which  was  followed  by  the  ecclesi- 
astical courts  of  England,  the  means  of  calling  a  defendant 
before  the  court  was  a  personal  citation.^  This  process 
is  often  called  a  monition,  and  is  the  process  adopted  and 
used  by  the  admiralty  courts.* 

Process,  under  the  present  practice  in  this  country  and 
in  England,  is  not  used  to  compel  a  party  to  appear,  but  to 
give  him  the  opportunity  to  do  so.^  And  while,  in  a 
sense,  there  is  a  penalty  attached  to  his  failure  to  appear, 
it  is  nothing  more  than  that,  upon  such  failure,  the  relief 
prayed  for  by  the  plaintiff  will  be  granted  to  him  and 
judgment  be  rendered  against  the  defendant  therefor. 
Therefore  all  of  the  common-law  and  equity  writs  and  pro- 
ceedings that  were  designed  to  enforce  the  appearance  of 
a  party  in  court  have  become  obsolete. 

In  most  of  the  states  in  this  country,  and  in  England, 
the  old  common-law  and  equity  writs,  as  well  as  those 
writs  adopted  by  the  courts  of  England  from  the  civil  law, 
have  been  superseded  by  the  writ  of  summons.     This  writ 

1  3  Bl.  Com.  443,  444.  ^  Foulke's  Ac.  in  Sup.  Ct.  10. 

»  3  Bl.  Com.  100,  279.  *  Anderson's  Die.  of  Law,  684. 

6  Ante,  sec.  33;  Elliott's  App.  Pro.,  sec.  170. 


I 


NATURE,  ETC.,  OF    ORIGINAL    PROCESS.  237 

has  been  defined  to  be  "  a  letter  missive  from  the  sovereign, 
issued  at  the  instance  of  a  plaintiff'  in  a  civil  action  for  the 
purpose  of  compelling  the  defendant  to  appear  and  an- 
swer the  claim  on  pain  of  judgment  being  given  against 
him  in  his  absence."  ^  But  this  is  not  a  satisfactory  defini-^ 
tion.  It  conveys  the  idea  that  a  summons,  under  the 
present  practice,  like  process  at  common  law,  is  intended 
to  compel  a  party  to  appear,  when  its  real  purpose  is  to 
notify  a  defendant  in  order  that  he  may  appear  and  de- 
fend if  he  desires  to  do  so.^ 

In  some  of  the  states  a  summons,  so  called,  is  not  a  writ 
issuing  out  of  the  court,  but  a  mere  notice  given  and 
signed  by  the  attorneys.*  Generally,  however,  it  is  re- 
quired to  issue  out  of  and  under  the  seal  of  the  court.* 
But,  whether  it  is  signed  by  the  attorney  of  the  plaintiff, 
or  issued  under  the  seal  of  the  court,  its  object  and  legal 
effect  is  the  same.  It  is  a  notice  to  the  defendant  to  ap- 
pear or  suffer  a  default.  To  summon  a  party  is  to  notify 
him  that  he  has  been  sued,  so  that  he  may  appear  in  court 
and  answer  the  complaint.^  It  is  one  of  the  means  by 
which  a  court  acquires  jurisdiction  of  the  person  of  a 
defendant.® 

In  some  of  the  states  the  writ,  or  notice,  corresponding  to 
the  summons  in  the  other  states,  is  denominated  a  citation^ 
In  some  of  the  states  it  is  called  what  it  really  is,  a  notice.^ 

In  those  states  in  which  the  equity  courts  and  practice 
are  still  maintained,  and  also  in  equity  cases  in  the  federal 
courts,  the  writ  of  subpena  is  still  in  use.  And  it  is  a 
little  curious  to  see  the  old  writ  of  subpena,  with  its  money 
penalty  for  non-appearance,  still  in  use  in  the  federal  and 
some  other  courts  in  this  country,  since  it  has  been  abol- 
ished in  the  country  in  which  it  originated.' 

'  Foulke's  Ac.  in  Sup.  Ct.  51. 

^  Mezchen  v.  More,  54  Wis.  214;  11  N.  W.  Rep.  534. 

=*  Post,  sec.  36;  Mezchen  v.  More,  54  Wis.  214 ;  11  N.  W.  Rep.  534. 

*  Post,  sec.  36.  *  Anderson's  Law  Die.  992. 
«  Ante,  sees.  13,  22,  23,  32,  33. 

'  Miles  V.  Kinney,  8  S.  W.  Rep.  542. 

8  Gray  r.  Wolf,  77  la.  630;  42  N.  W.  Rep.  504. 

*  Barton's  Suit  in  Eq.  65. 


238  MEANS    OF   ACQUIRING   JURISDICTION. 

In  some  of  the  states  in  which  the  chancery  court  is 
still  maintained,  the  writ  issued  is  still  called  a  subpena, 
but  it  has  been  so  modified  in  form  as  to  contain  the  sub- 
stance of  the  ordinary  summons.^ 

In  many  proceedings,  especially  in  probate  matters,  no- 
tice is  provided  for,  not  in  the  form  of  a  summons  or  other 
formal  writ,  but  as  a  simple  notice  of  the  time  and  place 
of  taking  some  proposed  action  in  a  court  or  other  tri- 
bunal. 

In  the  federal  courts,  in  admiralty  proceedings,  the  no- 
tice of  the  civil  law  known  as  a  monition  is  still  in  use.^ 
But  it  is  in  the  nature  of  a  summons,  although  it  may,  in 
some  cases,  be  a  general  citation  to  all  persons,  and  in 
others  a  special  citation  to  individuals  named,  or  a  mixed 
monition  containing  special  directions  to  all  persons,  and 
a  special  summons  to  particular  persons.^ 

A  citation  is  defined  to  be  "  a  writ  issued  out  of  a  court 
of  competent  jurisdiction,  commanding  a  person  therein 
named  to  appear  and  do  something  therein  mentioned,  or 
to  show  cause  why  he  should  not  on  a  day  named."  *  But, 
like  the  summons  of  the  present  day,  it  is,  as  now  used, 
rather  a  notice  than  a  command  to  appear,  and  differs  in 
no  material  respect  from  the  statutory  summons.  Indeed, 
while  the  original  process  by  which  a  court  acquires  juris- 
diction is  dififerently  named  in  different  states,  it  is  essen- 
tially the  same  in  all,  and  is  intended  to  subserve  the  same 
purpose. 

In  England,  where  the  numerous  common-law  writs  for 
the  enforcement  of  the  attendance  of  the  defendant  had 
their  origin,  the  change  has  been  even  more  radical  than 
in  this  country,  where  courts  of  equity  are  still  maintained 
as  separate  and  distinct  tribunals  in  some  of  the  states, 
and  the  equity  practice  is  still  maintained  in  the  federal 
courts.  In  England  the  old  writs  were,  by  successive  acts 
of  parliament,  materially  modified,  and  the  system,  as  a 
whole,  abolished.     And  finally,  by  the  judicature  acts,  all 

1  Barton's  Suit  in  Eq.  66.  ^  Windsor  v.  McVeigh,  93  U.  S.  274. 

^  Anderson's  Die.  of  Law,  684.  *  Bouv.  Law  Die,  title  Citation. 


REQUISITES   OF    PROCESS.  239 

actions  in  the  superior  court,  whicli  is  a  consolidation  of 
the  common  law,  equity,  admiralty,  and  ecclesiastical 
courts  of  general  jurisdiction,  are  now  commenced  by 
summons.^ 

Provision  is  now  very  generally  made  for  the  publica^ 
tion  of  notice  of  the  commencement  of  an  action  where 
the  defendant  can  not  be  personally  served  with  process, 
and  constructive  service  is  allowed.  In  some  of  the  states 
this  notice  consists  of  the  publication  of  the  summons,  in 
which  case  it  is  the  same  writ  but  a  different  mode  of  serv- 
ing it.  In  others,  a  notice  of  the  pendency  of  the  action 
is  published,  containing  the  same  matter  in  substance  as  is 
required  to  be  set  out  in  the  summons,  citation,  or  sub- 
pena,  as  the  case  may  be. 

In  the  appellate  courts  provision  is  usually  made  for  the 
giving  of  notice,  or  issuance  of  citation,  or  other  form  of 
writ  which  constitutes  notice  to  the  adverse  party,  but  the 
statutory  provisions  for  such  notices  are  different  in  the 
different  states.^ 

36.  Requisites  of  process. — Under  the  common  law  sys- 
tem of  practice  much  depended  upon  the  form,  as  well  as 
the  substance,  of  the  writ  which  was  the  beginning  of  the 
action.  Actions  were  divided  into  arbitrary  classes,  and 
a  particular  form  of  writ  was  necessary  for  each  of  these 
classes.  If,  therefore,  a  writ  not  applicable  to  an  action 
brought  was  used,  the  party  making  the  mistake  was 
turned  out  of  court.^  But  at  the  present  day  the  form  of 
the  writ  is  regarded  as  of  but  little  consequence.  Its  ob- 
ject is  to  give  the  defendant  such  notice  of  the  commence- 
ment and  object  of  the  action  or  proceeding  that  he  may 
have  an  opportunity  to  appear  and  make  his  defense.* 
Therefore,  if  a  summons  or  other  process,  or  notice,  is  is- 

^  Ante,  sec.  3 ;  Foulke's  Ac.  in  Sup.  Ct.  50,  51. 

2  Williams  v.  Hutchinson,  26  Fla.  513 ;  7  So.  Rep.  852  Elliott's  App. 
Pro.,  sees.  171,  172. 

^  Ante,  sec.  9. 

*  Ante,  sees.  32,  33,  34 ;  Bollinger  r.  Manning,  79  Cal.  7 ;  21  Pac.  Rep. 
375;  Shephard  v.  Brown,  30  W.  Va.  13;  3  S.  E.  Rep.  186. 


240  MEANS    OF    ACQUIRING    JURISDICTION. 

sued  and  signed  by  the  proper  person,  and,  if  required, 
under  the  proper  seal,  and  directed  to  the  proper  officer, 
and  notifies  the  defendant  that  an  action  has  been,  or  will 
be,  commenced  against  him  by  the  plaintiff,  the  cause  of 
action,  in  general  terms,  and  the  time  and  place  where  the 
defendant  may  appear,  it  is  usually  held  sufficient  to  give 
the  court  jurisdiction.^  It  makes  no  difierence  by  whom 
the  writ  is  prepared  or  whether  it  is  filled  out  before  or 
after  the  seal  and  signature  of  the  clerk  is  attached.^ 

Some  cases  go  so  far  as  to  hold  that  a  party  is  bound 
to  appear  and  ascertain  the  nature  of  the  cause  of  action 
alleged  against  him,  and  that  he  can  not  escape  the  conse- 
quences of  his  failure  to  do  so  upon  the  ground  that  the 
summons  did  not  fully  inform  him  of  the  nature  of  the 
cause  of  action  or  correctly  describe  the  relief  sought.^ 
But  where  the  substance  and  form  of  notice  to  be  given 
is  provided  by  statute  the  notice  given  must  conform,  sub- 
stantially, to  the  statute.*  So  where  a  form  of  summons 
is  prescribed  by  a  rule  of  court.* 

If  the  notice  is  such  that,  notwithstanding  its  defects, 
it  can  be  understood,  and  the  defects  are  such  as  can  not 
mislead  the  party,  it  will  be  upheld.^ 

'  A  summons,  or  other  notice,  may  be  defective  or  irregu- 
lar, and  therefore  subject  to  be  quashed  or  set  aside  on 
motion,  and  yet  be  sufficient  to  give  the  court  jurisdiction.^ 

1  Elliott's  App.  Pro.,  sees.  170-172;  Patmor  v.  Rombauer,  41  Kan.  295 ; 
21  Pac.  Rep.  284;  Jewett  v.  Garrett,  47  Fed.  Rep.  625. 

'^  Potter  V.  John  Hutchinson  M'fg  Co.,  87  Mich.  59;  49  N.  W.  Rep. 
517;  Jewett  v.  Garrett,  47  Fed.  Rep.  625. 

3  Freeman  v.  Paul,  105  Ind.  451 ;  5  N.  E.  Rep.  754. 

*  Allen  V.  Strickland,  100  N.  C.  225 ;  6  S.  E.  Rep.  780 ;  Simmons  v. 
Cochran,  29  S.  C.  31 ;  6  S.  E.  Rep.  859 ;  Atchison  T.  &  S.  F.  R.  Co.  v. 
Nicholls,  8  Colo.  188 ;  6  Pac.  Rep.  512 ;  Lyman  v.  Milton,  44  Cal.  630 ; 
Durham  r.  Betterton,  79  Tex.  223  ;  14  S.  W.  Rep.  1060;  People  v.  Greene, 
"52  Cal.  577 ;  Streeter  v.  Frank,  3  Pin.  (Wis.)  386 ;  Dyas  v.  Keaton,  3  Mont. 
495 ;  Higley  v.  Pollock,  27  Pac.  Rep.  895. 

^  Chamberlain  v.  Bittersohn,  48  Fed.  Rep.  42. 

«  McAllep  V.  The  Latona,  3  Wash.  Ter.  332;  19  Pac.  Rep.  131;  Bur- 
roughs V.  Norton,  48  How.  Pr.  132 ;  Boyd  v.  Weil,  11  Wis.  58 ;  Higley  v. 
Pollock,  27  Pac.  Rep.  895. 

'  Ante,  sees.  13, 22,  23 ;  post,  sec.  40 ;  Quarl  v.  Abbott,  102  Ind.  233 ;  1  N.  E. 


REQUISITES  OF  PROCESS.  241 

But  it  must  be  sufficiently  certain  to  inform  the  party  of 
the  matter  he  is  called  upon  to  answer.^ 

Where  the  action  is  for  a  money  judgment  the  amount 
claimed  must  be  set  out  in  the  summons.^ 

In  many  of  the  states  summons  is  not  made  returnable' 
on  any  specified  return  day,  but  the  defendant  is  given  by 
law  a  certain  number  of  days  after  service  of  the  writ  to  an- 
swer. Under  such  a  statute,  while  it  may  be  an  irregularity 
to  fix  a  dificrent  time  for  answer  in  the  writ  it  does  not 
render  it  invalid  or  affect  a  judgment  rendered  upon  it.^ 

The  name  of  the  person  to  be  summoned  must  be  in- 
serted in  the  writ.*  But  a  variance  in  the  name  will  not 
vitiate  the  service  in  all  cases  if  service  of  the  writ  is 
actually  made  on  the  proper  person.^  In  such  case  the 
party  has  notice,  although  irregular,  and  may  object  to 
its  sufficiency  on  the  ground  of  variance  in  the  name,  but 
if  he  does  not  the  judgment  rendered  is  not  void  for  want 
of  jurisdiction.^ 

The  writ  must  be  directed  to  some  officer  or  person 
authorized  by  law  to  execute  it  or  it  is  void.^ 

If  the  statute  directs  the  issuance  of  a  writ  to  one  offi- 
cer, only  In  case  some  other  officer  is  disqualified,  from  in- 
terest or  some  other  cause,  the  disqualification  must  exist 
or  the  writ  can  not  be  directed  to  such  officer  and  he  be 
conditionally  authorized  to  execute  it.^ 

Rep.  476 ;  McAUop  v.  Latoua,  3  Wash.  Ter.  332 ;  19  Pac.  Rep.  131 ;  Bank 
of  Missouri  v.  Matson,  26  Mo.  243;  72  Am.  Dec.  208. 

^  Weiser  v.  Day,  77  la.  25 ;  41  N.  W.  Rep.  476;  Gundry  v.  Whittlesey, 
19  Wis.  211. 

2  Gundry  v.  Whittlesey,  19  Wis.  211. 

^  Porter  v.  Vandercook,  11  Wis.  70. 

*  Keller  v.  Stanley,  86  Ky.  240 ;  5  S.  W.  Rep.  477 ;  Lyman  v.  Milton,  44 
Cal.  630;  Tex.  &  Pac.  Ry.  Co.  v.  Florence,  14  S.  W.  Rep.  1070;  Southern 
Pacific  Co.  V.  Block,  19  S.  W.  Rep.  300. 

*  Johnson  v.  Patterson,  59  Ind.  237.  But  see  Southern  Pacific  Co.  v. 
Block,  19  S.  W.  Rep.  300. 

«  Morgan  v.  Woods,  33  Ind.  23 ;  Hollingsworth  v.  Barbour,  4  Pet.  466, 
476. 
^  Vaughn  v.  Brown,  9  Ark.  20;  47  Am.  Dec.  730. 
8  Gowdy  V.  Sanders,  88  Ky.  346;  11  S.  W.  Rep.  82. 
16 


242  MEANS    OF    ACQUIRING    JURISDICTION. 

In  some  of  the  states  the  form  of  the  summons  de- 
pends upon  the  nature  of  the  action,  it  being  provided, 
generally,  that  where  the  action  is  on  contract  for  a  money 
judgment,  the  summons  must  notify  the  defendant  that  if 
he  fails  to  appear  the  plaintift'  will  take  judgment  for  the 
sum  claimed  by  him,  and  in  other  cases,  that  unless  the 
defendant  appears  and  answers,  the  plaintiff  will  apply  to 
the  court  for  the  relief  demanded.  These  useless  provis- 
ions have  given  rise  to  some  very  perplexing  questions. 
In  many  cases  the  summons  and  complaint  do  not  agree 
as  to  the  cause  of  action.  In  such  case,  if  the  summons 
is  served  before  the  complaint  is  tiled,  and  the  complaint 
subsequently  filed  contains  a  different  cause  of  action,  and 
one  that  would  require  a  summons  in  a  different  form,  it 
is  usually  held  that  the  summons  is  invalid  for  the  reason 
that  by  the  incorrect  statement  in  the  summons  the  party 
may  have  been  misled  into  allowing  a  judgment  to  be 
taken  by  default.^ 

But  if  the  summons  and  complaint  are  served  together, 
the  complaint  controls  as  to  the  cause  of  action,  and  the 
defendant  has  full  notice  of  the  claim  made  against  him, 
and  notwithstanding  the  variance  between  the  complaint 
and  the  summons,  the  summons  is  held  to  be  valid.^  In 
other  words,  if  it  appears  that  the  defendant  could  not 
have  been  misled  or  injured  by  the  discrepancy,  the  sum- 
mons will  be  held  suflicient  even  as  against  a  direct  motion 
to  set  it  aside.^ 

But  it  has  been  held  that  unless  the  defendant  has  done 
something  to  waive  the  defect,  it  will  be  conclusively  pre- 
sumed that  he  was  injured  by  the  failure  to  comply  with 

1  Brown  v.  Eaton,  37  How.  Pr.  325 ;  St.  Paul  Harvester  Co.  v.  Forbreg, 
50  N.  W.  Rep.  628. 

^  Brown  v.  Eaton,  37  How.  Pr.  325 ;  City  of  Fond  du  Lac  r.  Bonesteel, 
22  Wis.  251 ;  Berry  r.  Bingaman,  47  N.  W.  Rep.  825 ;  Higley  v.  Pollock, 
27  Pac.  Rep.  895 ;  St.  Paul  Harvester  Co.  v.  Forbreg,  50  N.  W.  Rep.  628  ; 
Chamberlain  v.  Bittersohn,  48  Fed.  Rep.  42. 

3  McCoun  V.  N.  Y.  C.  &  H.  R.  R.  Co.,  50  N.  Y.  176;  Clark  v.  Palmer, 
90  Cal.  504 ;  Clark  v.  Gunn,  27  Pac.  Rep.  375 ;  Berry  v.  Bingaman,  47  N. 
W.  Rep.  825 ;  Sweeney  v.  Schultz,  19  Nev.  53 ;  6  Pac.  Rep.  44 ;  Higley  v. 
Pollock,  27  Pac.  Rep.  895. 


REQUISITES    OF    PROCESS.  243 

tlie  statute/  And  there  are  cases  holding  that  under  such 
circumstances  the  statute  iixing  the  form  of  the  summons 
is  mandatory,  and  a  failure  to  comply  with  it  renders  the 
summons  fatally  defective.^  It  will  be  noticed,  however, 
that  in  some,  at  least  of  these  cases,  a  copy  of  the  com- 
plaint was  not  required  by  law  to  be  served  with  the  sum- 
mons, and  if  the  summons  did  not  conform  to  the  com- 
plaint on  file,  the  defect  was  such  as  to  mislead  the 
defendant.  In  some  of  the  cases  a  summons  of  the  kind 
under  consideration  is  held  to  be  voidable,  and  subject  to 
be  set  aside  on  motion,  or  on  appeal,  but  not  void.^  And 
in  others,  that  in  case  of  a  variance  of  this  kind  the  fault 
is  in  the  complaint,  which  should  follow  the  summons,  if 
the  latter  is  filed  first,  and  that  the  attack  should  be  upon 
the  complaint  on  the  ground  that  it  does  not  conform  to 
the  summons.* 

In  some  of  the  decisions  a  distinction  is  made  between 
cases  in  which  application  must  be  made  to  the  court  for 
relief,  and  those  in  which  the  clerk  may  enter  the  default, 
as  to  the  effect  of  a  mistake  of  this  kind.  It  is  said  that 
if  the  action  is  one  in  which  the  clerk  may  enter  a  default, 
the  defendant  can  not  be  injured  by  a  statement  in  the 
summons  that  application  will  be  made  to  the  court  for 
relief,  but  that,  if  the  action  is  one  in  which  the  defend- 
ant is  entitled  to  have  the  matter  submitted  to  the  court, 
a  notice  to  him  that  in  case  he  fails  to  answer  judgment 
will  be  taken  against  him  for  the  amount  claimed,  is  one 
affecting  a  substantial  right,  viz.,  the  right  to  have  the 
court  pass  upon  the  question  as  to  the  relief  to  be  granted 

>  Dyas  V.  Keaton,  3  Mont.  495;  Sweeney  v.  Schultz,  19  Nev.  53;  6  Pac. 
Rep.  44 ;  St.  Paul  Harvester  Co.  v.  Forbreg,  50  N.  W.  Rep.  628. 

2  Atchison,  T.  &  S.  F.  R.  Co.  v.  Nicholls,  8  Colo.  188;  6  Pac.  Rep.  512 ; 
Smith  V.  Aurich,  6  Colo.  388;  Sawyer  v.  Robertson,  11  Mont.  416;  28 
Pac.  Rep.  456;  Porter  v.  Hermann,  8  Cal.  619,  625;  Dyas  v.  Keaton,  3 
Mont.  495;  Chamberlain  v.  Bittersohn,  48  Fed.  Rep.  42;  Chamberlain 
f.  Mensing,  47  Fed.  Rep.  202. 

^  Keybersv.  McComber,  67  Cal.  .395;  7  Pac.  Rep.  838;  Ward  v.  Ward, 
59  Cal.  139. 

*  City  of  Fond  du  Lac  v.  Bonesteel,  22  Wis.  251. 


244  MEANS    OF    ACQUIRING   JURISDICTION. 

to  the  plaintiff.*  But  the  force  of  the  reasoning  upon 
which  this  distinction  is  attempted  to  be  maintained  is  not 
apparent.  The  cause  of  action  set  out  in  the  complaint, 
or  in  the  summons  if  no  complaint  is  required  to  be 
served,  must  disclose  to  the  defendant  whether  judgment 
can  be  taken  against  him  upon  default  entered  by  the 
clerk,  or  whether  application  must  be  made  to  the  court 
for  relief.  The  defendant  has  notice  of  every  fact  neces- 
sary for  him  to  determine  whether  to  answer  or  not.  If 
the  case  is  one  in  which  relief  must  be  demanded  of  the 
court  he  must  know,  as  a  matter  of  law,  that  judgment 
can  not  be  taken  against  him,  as  of  course,  upon  the  entry 
of  default  by  the  clerk,  although  the  summons  so  states. 
And  as  the  object  of  a  summons,  as  we  have  seen,  is  to 
notify  the  defendant  of  the  facts  necessary  to  inform  him 
of  the  cause  of  action  and  the  time  and  place  for  his  ap- 
pearance, whether  the  means  by  which  the  relief  demanded 
is  to  be  obtained  is  correctly  stated  in  the  summons  or  not 
does  not  affect  any  substantial  right  of  the  defendant. 
Therefore  the  only  ground  upon  which  a  mistake  in  this 
respect,  in  the  summons,  can  be  held  to  render  it  void,  is 
that  it  does  not  comply  with  the  requirements  of  the  stat- 
ute. But  the  weight  of  authority  is  that  a  failure  to  com- 
ply with  the  statute,  where  it  appears  that  no  substantial 
right  of  the  defendant  is  affected  thereby,  does  not  render 
the  summons  void,  but  only  irregular,  and  subject  to  be 
set  aside  on  direct  attack.^  And  a  literal  compliance  with 
the  statute  is  not  required  even  on  a  direct  attack.^ 

Notice  in  the  summons  that  judgment  will  be  taken 
for  the  amount  claimed  will  not  authorize  the  clerk  to  en- 
ter judgment  by  default,  where  the  action  is  not  one  aris- 
ing on  contract  for  the  recovery  of  money  or  damages 

1  Schuttler  v.  King,  30  Pac.  Rep.  25. 

2  Dyas  V.  Keaton,  3  Mont.  495,  499 ;  Schuttler  v.  King,  30  Pac.  Rep.  25  ; 
McCoun  V.  N.  Y.  Cent.,  etc.,  R.  Co.,  50  N.  Y.  176;  Clark  v.  Palmer,  90 
Cal.  504;  Clark  v.  Gunn,  27  Pac.  Rep.  375;  Berry  v.  Bingaman,  47  N.  W. 
Rep.  825 ;  Sweeney  v.  Schultz,  19  Nev.  53;  6  Pac.  Rep.  44. 

3  Behlow  V.  Shorb,  91  Cal.  141 ;  27  Pac.  Rep.  546;  Kimball  v.  Castagim, 
8  Colo.  525 ;  9  Pac.  Rep.  488. 


fl 

y 


REQUISITES    OF    PROCESS.  245 

only.^  A  general  statement  of  the  cause  of  action  in  the 
summons  is  sufficient.^  The  clerk  of  one  court  can  not  is- 
sue process  returnable  to  another  court  unless  expressly 
authorized  to  do  so  by  law,  and  a  summons  so  issued  is 
void,  although  the  same  person  is  clerk  of  both  courts:^ 
The  signature  of  the  person  or  officer  required  to  issue  the 
writ  is  necessary  to  its  validity.*  In  some  of  the  states 
summons  is  authorized  to  be  signed  by  the  plaintiff  or  his 
attorney.  Under  such  statutes  it  is  held  that  the  sum- 
mons need  not  be  tested  in  the  name  of  the  presiding 
judge  of  the  court,  or  the  clerk,  nor  have  the  seal  of  the 
court  affixed.^  The  fact  that  the  signature  of  the  clerk,  or 
of  an  attorney,  to  the  summons,  is  printed,  instead  of  be- 
ing written,  does  not  render  the  summons  void.®  Un- 
doubtedly, the  use  of  a  printed  signature  is  liable  to  abuse, 
as  a  writ  may  be  used  in  such  form  by  a  third  party  with- 
out the  knowledge  of  the  clerk.  But  the  presumption  is 
in  favor  of  its  validity,  and  if  put  out  without  the  consent 
of  the  officer  whose  duty  it  is  to  issue  it,  and  whose  name 
appears  to  it,  the  burden  of  showing  that  it  was  issued 
without  his  authority  is  upon  the  party  attacking  the 
Avrit.^  Usually,  where  writs  of  summons,  or  other  orig- 
inal writs,  are  required  to  be  issued  by  the  clerk  of  a  court, 
they  must  be  tested  in  the  name  of  the  clerk,  or  of  the 
judge  of  the  court,  as  may  be  provided,  and  bear  the  seal 

1  People  V.  Weil,  53  Cal.  253. 

2  Bewick  v.  Muir,  83  Cal.  368;  23  Pac.  Rep.  389. 

3  Lowrey  v.  Richmond  &  D.  R.  Co.,  83  Ga.  504  ;  10  S.  E.  Rep.  123. 

*  Lowrey  v.  Richmond  &  D.  R.  Co.,  83  Ga.  504;  10  S.  E.  Rep.  123; 
Brown  v.  Way,  33  Ga.  190. 

^  Ante,  sec.  32;  Johnson  v.  Hamberger,  13  Wis.  175. 

6  Herrick  v.  Morrill,  37  Minn.  250 ;  33  N.  W.  Rep.  849 ;  Ligare  v.  Cali- 
fornia S.  R.  R.  Co.,  76  Cal.  610;  18  Pac.  Rep.  777;  Mezchen  v.  More,  54 
Wis.  214 ;  11  N.  W.  Rep.  534.  It  was  held  otherwise  in  Ames  v.  Schur- 
meier,  9  Minn.  221,  but  that  case  is  expressly  overruled  by  Herrick  v. 
Morrill,  supra. 

'  In  Ligare  v.  California  S.  R.  R.  Co.,  supra,  it  was  held  that  the  aflSx- 
ing  of  the  seal  by  the  clerk  to  a  form  of  summons  with  his  name 
printed  thereto,  was  a  sufficient  adoption  of  the  printed  signature  as 
his  own. 


246  MEANS    OF   ACQUIRING   JURISDICTION. 

of  the  court.^  But  it  is  held  that  the  teste  of  a  writ  is  a 
matter  of  form,  and  may  be  amended.^  Aud  that  it  may 
be  amended  by  attaching  the  seal  even  after  judgment.^ 
It  follows  from  this  that  a  summons  perfect  in  all  other 
respects,  but  lacking  the  seal,  is  defective,  but  not  void/ 
But  the  authorities  on  this  subject  are  not  uniform.  And 
while  it  is  believed  that  the  rule  that  a  summons,  without 
a  seal,  is  not  void,  but  may  be  amended,  is  the  better  and 

»  Den  V.  Bank  of  Cape  Fear,  3  Dev.  Law  279 ;  22  Am.  Dec.  722 ;  Gar- 
land V.  Britton,  12  111.  232  ;  52  Am.  Dec.  487  ;  Woolford  v.  Dugan,  2  Ark. 
131 ;  35  Am.  Dec.  52. 

2  Guarantee  Trust,  etc.,  Co.  v.  Buddington,  23  Fla.  514;  2  Sou.  Rep. 
885 ;  State  v.  Davis,  73  Ind.  359 ;  Woolford  v.  Dugan,  35  Am.  Dec.  53, 
note  ;  United  States  v.  Turner,  50  Fed.  Rep.  734. 

^  State  V.  Davis,  73  Ind.  359;  Boyd  v.  Fitch,  71  Ind.  306;  Krug  v.  Davis, 
85  Ind.  310;  Jump  v.  Batton,  35  Mo.  193;  86  Am.  Dec.  146;  Jackson  v. 
Brown,  4  Cow.  550. 

*  "  The  liberal  provisions  of  our  statute,  respecting  the  summons, 
would  take  such  writs  from  under  the  old  common  law  rule,  even  if  it 
were  conceded  that  it  is  the  rule  which  must  be  adopted  respecting  other 
writs.  The  provisions  of  the  code  upon  this  subject  are  contained  in 
article  4,  and  the  provision  which  directly  bears  upon  this  point  is 
found  in  section  37,  and  is  as  follows :  '  No  summons,  or  the  service, 
shall  be  set  aside,  or  be  adjudged  insufficient,  where  there  is  sufficient 
substance  about  either  to  inform  the  party  on  whom  it  may  be  served, 
that  there  is  an  action  instituted  against  him  in  court.'  We  think  it 
very  clear  that  the  omission  to  affix  the  seal  does  not  prevent  the  writ 
from  imparting  to  the  parties  against  whom  it  is  issued,  and  that  very 
fully  and  distinctly,  information  that  an  action  is  instituted  against 
them.  The  seal  would  affijrd  no  information ;  its  office  is  merely  to  at- 
test the  authenticity  of  the  writ.  The  absence  of  the  seal  does  not  take 
from  the  substance  of  the  writ  any  thing  essential  to  the  information  which 
our  code  provides  that  it  shall  give  the  parties  against  whom  it  issues. 
There  is  certainly  sufficient  substance  about  a  summons,  which  is  de- 
fective only  in  the  single  particular  that  a  seal  is  lacking,  to  impart  full 
information  that  an  action  has  been  instituted  against  the  parties  therein 
designated  as  defendants.  A  summons  which  is  sufficient  in  substance 
to  do  this,  is  valid  under  our  statute.  This  was  so  held  in  Boyd  v.  Fitch, 
71  Ind.  306,  and  we  are  well  satisfied  that  the  ruling  was  entirely  cor- 
rect. We  hold  that,  under  our  code,  a  summons  is  not  void  because  not 
attested  by  the  seal  of  the  court,  aud  that  the  court  has  the  right  to  or- 
der the  clerk  to  affix  the  seal  now  for  then.  Miller  v.  Royce,  60  Ind. 
189;  Newhouse  v.  Martin,  68  Ind.  224."     State  v.  Davis,  73  Ind.  360. 


II 


REQUISITES    OF    PROCESS.  247 

more  reasonable  one,  it  must  be  admitted  that  there  are 
numerous  authorities  to  the  contrary.^ 

It  is  usually  provided  that  writs  of  summons  shall  run 
in  the  name  of  the  state,  but  even  where  this  is  required 
by  the  constitution  a  failure  to  comply  with  the  require- 
ment does  not  render  the  writ  void,  but  irregular  only.^ 
The  issuance  of  a  summons  is  a  ministerial  act,  and  therefore 

'  Frosch  V.  Schlumpf,  2  Tex.  442;  47  Am.  Dec.  655;  Stayton  i'.  New- 
comer, ]  Eng.  (Ark.)  451;  44  Am.  Dec.  524. 

"  According  to  the  principal  case,  the  sealing  of  a  writ  is  indispensable 
to  its  validity  ;  and  the  absence  of  the  seal  authorizes  the  person  against 
whom  the  writ  is  directed,  to  treat  it  as  a  nullity.  This  extreme  view  is 
not  without  abundant  support  in  the  decisions  of  other  tribunals.  Den 
V.  Bank  of  Cape  Fear,  22  Am.  Dec.  722 ;  Tackett  v.  State,  24  Id.  582. 
Generally,  an  execution  or  other  writ  may  be  amended  for  the  purpose 
of  effectuating  proceedings  taken  under  it.  Doe  v.  Rue,  29  Id.  368 ;  Eoss 
V.  Luther,  15  Id.  341 ;  Hargrave  v.  Penrod,  12  Id.  201 ;  Scribner  v. 
Whitcher,  23  Id.  708.  In  discussing  this  question  on  a  former  occasion, 
"we  said :  '  The  etfect  of  the  failure  to  affix  the  seal  of  the  court  to  an 
execution  is  a  subject  upon  which  the  authorities  are  too  evenly  di- 
vided to  warrant  us  in  expressing  a  very  decided  opinion.  The  question 
has  been  much  more  frequently  determined  than  discussed  by  the 
courts.  The  conclusions  on  either  side  have  been  announced  with  a 
curtness  and  dogmatism  that  disdained  argument  and  explanation,  and 
cared  neither  to  deal  with  logic  nor  to  delve  for  precedents.  On  the  one 
Bide,  the  theory  seems  to  be  that  before  the  seal  is  affixed  there  can  be 
no  writ ;  that  without  the  seal  there  can  be  no  legal  command  to  exe- 
cute the  judgment  of  the  court;  that  an  officer  acting  in  the  absence  of 
a  seal  acts  in  the  absence  of  a  writ ;  and  that,  while  so  acting,  whatever 
he  does  is  unjustifiable  and  void.  Insurance  Co  v.  Hallock,  6  Wall.  556; 
Boal  ?•.  King,  6  Ohio,  11 ;  Swett  v.  Patrick,  2  Fairf.  11 ;  Hutchins  v.  Ed- 
son,  1  N.  H.  139 ;  Shackleford  v.  McRea,  2  Hawks,  226  ;  Seawell  v.  Bank 
of  Cape  Fear,  3  Dev.  279.  On  the  other  side,  it  is  assumed  that  the 
omission  of  the  seal  is  an  omission  of  a  matter  of  form  rather  than  of 
substance;  that  it  can  be  corrected  by  amendment,  on  application  to 
the  court ;  and  that,  being  an  amendable  error,  it  can  not  utterly  avoid 
the  writ.'  Dever  v.  Akin,  40  Ga.  429;  Corwith  r.  Bank  of  Illinois,  18 
Wis.  560;  Sabin  v.  Austin,  19  Id.  421  ;  People  v.  Dunning,  1  Wend.  16; 
Dominick  v.  Backer,  3  Barb.  17 ;  Arnold  v.  Nye,  23  Mich.  286  ;  Sawver  v. 
Baker,  3  Greenl.  29;  Purcell  v.  McFarland,  1  Ired.  34,  Bridewell  v. 
Mooney,  25  Ark.  524 ;  Clark  v.  Hellen,  1  Ired.  421."  Woolford  r.  Dugan, 
35  Am.  Dec.  53,  note. 

"  Jump  t'.  Batton.  35  Mo.  193;  86  Am.  Dec.  146;  Ilsley  r.  Harris..  10 
Wis.  95.     But  see  Roach  v.  Moulton,  2  Pin.  (Wis.)  221. 


248  MEANS    OF    ACQUIKING    JURISDICTION. 

a  clerk  may  issue  a  summons  in  an  action  in  his  own  behalf.^ 
But  it  may  be  otherwise  in  case  of  the  execution  of  a 
writ  by  a  sheriff.  At  common  law,  where  the  sheriff  was 
a  party,  all  writs  issued  in  the  action  were  required  to  be 
directed  to  the  coroner.  And  provision  to  the  same  effect 
is  usually  made  by  statute.  It  has  been  held,  therefore, 
that  a  writ  issued  to  a  sheriff  in  a  case  in  which  he  is  inter- 
ested is  void.^  But  this  was  in  case  of  an  execution.  And 
such  a  defect  in  a  summons,  while  it  might  be  sufficient  to 
set  it  aside  in  case  of  a  direct  attack,  should  not  render 
it  void.  As  the  sole  object  of  a  summons  or  citation  is  to 
notify  the  defendant  of  the  action  against  him,  the  mere 
fact  that  it  is  directed  to  the  wrong  officer  would  not 
affect  it  in  the  least  as  such  notice.  But  we  shall  see  when 
we  come  to  consider  the  question  of  service  of  process 
that  in  legislation  authorizing  the  service  of  process  by 
others  than  an  officer  it  is  usually  provided  that  the  per- 
son so  authorized  shall  not  be  interested  in  the  action.^ 
And  it  is  usually  held  that  a  writ  issued  to  one  officer  can 
not  be  served  by  another  officer,  or  person,  unless  expressly 
authorized  by  law.^  But  a  writ  served  by  the  proper  offi- 
cer when  directed  to  another  may  be  amended  after  service 
by  correcting  the  direction.^  Therefore  it  can  not  be  safely 
said  that  a  summons  directed  to  an  officer  who  is  interested 
in  the  result  of  the  action  is  not  void,  but  only  irregular, 
although,  according  to  the  liberal  rules  laid  down  by  the 
later  authorities  as  to  the  sufficiency  of  process,  intended 
to  give  notice  only,  it  should  be  so  held.^ 

A  notice  must  be  one  authorized  by  law,  or  it  is  no  no- 
tice, no  matter  how  accurate  it  may  be.® 

*  Evans  v.  Etheridge,  96  N.  C.  42 ;  1  S.  E.  Rep.  633. 

2  Collins  V.  McLeod,  8  Ire.  L.  (N.  Car.)  221 ;  49  Am.  Dec.  376. 

3  Post,  sec.  37. 

*  Pecott  V.  Oliver,  10  Pac.  Rep.  302 ;  Lyon  r.  Fish,  20  Ohio,  100,  105 ; 
Walden  v.  Davidson,  15  Wend.  574 ;  Hearsey  v.  Bradbury,  9  Mass.  95 ; 
Campbell  v.  Stiles,  9  Mass.  217  ;  Hibben  v.  Smith,  50  Cal.  511 ;  Chadwick 
V.  Divol,  12  Vt.  499 ;  post,  sec.  37. 

*  See  on  this  subject  Adams  v.  Wiscasset  Bank,  1  Greenleaf  (Me.) 
361 ;  10  Am.  Dec.  88. 

«  Ante,  sec.  33  ;  Allen  v.  Strickland,  100  N.  C.  225  ;  6  S.  E.  Rep.  780 ; 


REQUISITES  OF  PROCESS.  249 

A  summons  issued  on  Sunday  will  be  upheld  where  the 
exigencies  of  the  case  require  immediate  action  in  order 
to  secure  the  rights  of  plaintiff/ 

As  to  the  time  when  a  summons  may  issue  the  statutes 
of  the  several  states  differ.  Where  the  writ  is  required 
to  be  issued  by  the  clerk  or  court  it  is  generally  provided 
that  it  shall  issue  after  the  complaint  is  filed.  And  if  it 
is  issued  before  it  is  void.^  But  in  some  of  the  states  the 
summons  or  citation  is  authorized  to  be  issued  before  the 
complaint  is  filed,  in  which  case  it  must,  instead  of  stat- 
ing that  an  action  has  been  brought,  set  forth  the  time 
when  it  will  be  commenced.  Where  summons  or  other 
notice  is  authorized  to  be  issued  in  advance  of  the  com- 
mencement of  the  action,  it  is  sometimes  allowed  to  be 
issued  and  signed  by  the  plaintiff  or  his  attorney  instead 
of  the  clerk  or  judge.  But  there  is  no  reason  why  the 
same  thing  may  not  be  authorized  to  be  done  by  the 
clerk. 

An  alias  summons  may  issue  after  the  original  summons 
has  become  functus  officio,  as  by  having  been  returned,  the 
return  day  having  passed,  or  the  like.  So  where  the  orig- 
inal summons  is  out  of  the  reach  or  control  of  the  ofiicer 
whose  duty  it  is  to  serve  it,  it  has  been  held  that  an  alias 
writ  may  issue.^ 

By  the  return  day  of  a  summons,  or  other  original  writ, 
is  meant,  not  only  the  day  upon  which  the  writ  shall  be 
returned  into  court  by  the  ofiicer,  but  the  time  when  the 
defendant  shall  appear  and  answer  the  complaint.* 

In  some  cases,  the  time  when  a  summons  is  made  re- 
turnable affects  its  validity.  Thus  it  is  held  that  a  sum- 
mons issued  before,  and  made  returnable  after  the  next 
ensuing  term  of  the  court,  is  void.^     So  it  is  held  that 

Stuart  V.  Palmer,  74  N.  Y.  183,  188;  Kuntz  v.  Sumption,  117  Ind.  1  ;  19 
N.  E.  Rep.  474. 

^  Pearson  v.  Alsalfa,  44  Fed.  Rep.  358. 

^  Mills  I'.  State,  10  Ind.  114. 

^  Williams  r.  Welton,  28  Ohio  St.  451,  469. 

*  Anderson's  Law  Die.  898;  3  Bl.  Com.  273. 

^  Elliott's  App.  Pro.,  sec.  333;  Briggs  v.  Sneghan,  45  Ind.  14;  Culver 
V.  Phelps,  130  111.  217;  22  N.  E.  Rep.  809. 


250  MEANS    OF    ACQUIRING    JURISDICTION. 

where  the  statute  requires  the  time  for  the  appearance  of 
a  defendant  in  a  court  of  inferior  jurisdiction  to  be  fixed 
in  the  summons,  not  more  than  a  certain  number  of  days 
from  its  issuance,  a  summons  made  returnable  more  than 
the  time  provided,  from  its  date,  is  void.^  But  making  a 
summons  returnable  in  less  than  the  stated  time  does  not 
render  it  void.^ 

Generally,  the  first  day  in  the  term  is  made  the  return 
day,^  but  any  time  during  the  term  may  be  made  so  by 
statute,  or  the  plaintifl'  may  be  authorized  to  fix  any  day 
in  the  term  for  the  return  of  the  summons,  by  indorse- 
ment on  the  complaint.^ 

If  the  statute  fixes  the  return  day,  a  summons  made  re- 
turnable on  any  other  day  gives  the  court  no  jurisdiction.^ 

A  writ  made  returnable  on  a  legal  holiday  is  not  void, 
but  the  return  day  will  be  the  first  day  thereafter  when 
the  court  may  legally  transact  business.^ 

If  a  statute  requires  summons  to  be  made  returnable  at 
a  fixed  hour,  a  summons  which  fails  to  fix  the  hour  is  de- 
fective, and  may  be  set  aside  on  motion,  or  upon  review, 
writ  of  error,  or  appeal.''  Not  only  so,  but  such  a  sum- 
mons would  seem  to  be  so  uncertain  as  not  to  give  the 
court  jurisdiction.  But  it  has  been  held  otherwise  in  case 
of  a  domestic  judgment.'' 

In  some  of  the  states  it  is  required  by  statute  that  the 
name  of  the  attorney  for  the  plaintiflf  be  indorsed  on  the 
summons.  But  it  has  been  held  that  a  failure  to  comply 
with  this  requirement  does  not  render  the  summons  void, 
but  only  irregular.^  But  in  the  case  cited  the  names  of 
the  attorneys  did  appear  on  the  face  of  the  summons,  and 

'  Simmons  v.  Cochran,  29  S.  C.  31 ;  6  S.  E.  Rep.  859 ;  Pantall  v.  Dickey, 
123  Pa.  St.  431 ;  16  Atl.  Rep.  789. 

*  Clough  V.  McDonald,  18  Kan.  114;  Swerdsfeger  v.  The  State,  21  Kan. 
475;  In  re  Newman,  75  Cal.  213;  16  Pac.  Rep.  887.  But  see  Bell  v. 
Good,  19  N.  Y.  Sup.  693. 

'  Briggs  V.  Sneghan,  45  Tnd.  14.         *  Johnson  v.  Lynch,  87  Ind.  326. 

^  Crowell  V.  Galloway,  3  Neb.  215,  218. 

«  Ostertag  v.  Galbraith,  23  Neb.  730;  37  N.  W.  Rep.  637. 

'  Hendrick  v.  Whittemore,  105  Mass.  23. 

8  Shinn  v.  Cummins,  65  Cal.  97  ;  3  Pac.  Rep.  133. 


SERVICE    OP    PROCESS.  251 

the  opinion  of  the  court  rests,  mainly,  upon  the  fact  that 
the  failure  to  indorse  the  name  of  the  attorney  thereon 
did  not  affect  the  substantial  rights  of  the  defendant  where 
the  name  appeared  elsewhere  on  the  writ.  But  if  the 
name  of  the  attorney  is  omitted  entirely,  the  summons 
is  still  sufficient  to  give  the  party  notice  of  all  that  is  nec- 
essary for  him  to  know,  except  it  may  be  the  person  upon 
whom  to  serve  his  answer,  which  must  appear  from  the 
complaint,  and  the  summons,  under  the  later  and  more 
liberal  rules,  would  still  not  be  void.^ 

A  summons  which,  standing  alone,  would  be  void  for 
uncertainty,  misnomer  of  the  parties  to  the  action,  or  the 
like,  may  be  aided  and  rendered  valid  by  the  complaint, 
or  declaration,  if  properly  annexed  thereto.^ 

37.  Service  of  process. — The  time  and  manner  of  serv- 
ice of  process  is  governed,  almost  entirely,  by  statutes  in 
the  several  states.  These  statutory  provisions  differ  in 
matters  not  material,  but  in  respect  of  substantial  requi- 
sites, affecting  the  rights  of  defendants,  they  will  be  found 
to  be  very  similar.  The  purpose  and  object  of  all  of  the 
statutes  is  to  give  a  party  ample  time  and  opportunity  to 
appear  and  make  his  defense.^ 

The  statutes  regulating  the  issuance  and  service  of  orig- 
inal process  are  so  nearly  alike  in  all  essential  respects, 
differing  mainly  as  to  matters  of  form,  and  the  way  in 
which  the  same  thing  shall  be  done,  that  we  might  reas- 
onably expect  to  find  a  like  uniformity  and  concurrence 
in  the  decisions  of  the  courts  respecting  them.  But  an 
examination  of  the  cases  speedily  dispels  this  idea.  The 
decisions  are  numerous  and  irreconcilably  conflicting  on 
many,  if  not  most,  of  the  questions  arising  under  this  im- 
portant branch  of  the  law. 

Service  of  process  may  be  considered  under  four  distinct 
heads,  viz.,  by  whom,  when,  where,  and  how  service  must 
be  made.  And  as  incidental  to  these,  the  last  particularly, 
the  person  upon  whom  service  is  to  be  made  becomes  ma- 

*  Jewett  V.  Garrett,  47  Fed.  Rep.  625;  post,  sec.  37. 

="  Scudder  v.  Massengill,  U  S.  E.  Rep.  571.  ^  Ante,  sec.  36. 


252  MEANS    OF    ACQUIRING    JURISDICTION. 

teriaL  Whether  the  party  served  is  a  resident  or  non- 
resident, a  married  woman,  a  minor,  an  insane  person,  or 
one  acting  in  an  official  capacity,  or  a  corporation,  fre- 
quently affects  the  validity  or  sufficiency  of  the  service. 
All  of  these,  except  the  question  of  service  on  corpora- 
tions, will  receive  attention  in  this  section.  The  subject 
of  service  on  corporations  will  be  taken  up  in  a  subse- 
quent section. 

The  general  rule  is  that  the  jurisdiction  of  a  court  "  can 
never  be  called  into  exercise  unless  through  the  medium 
of  process  complete  in  law  and  duly  served.'"  ^ 

1.  By  whom  service  must  be  made. — As  a  general  rule, 
certain  officers  are  authorized  to  serve  process,  such  pro- 
cess must  be  directed  to  them,  and  they  alone  can  make 
legal  service.^  At  common  law  no  person  but  a  public 
officer  can  serve  process.*  Service  of  process  by  one  not 
authorized  to  serve  it  is  a  nullity,  and  confers  no  jurisdic- 
tion.* 

Usually  the  sheriff  is  authorized  to  serve  process  issuing 
out  of  the  state  courts  of  superior  original  jurisdiction, 
constables  process  issuing  out  of  the  inferior  courts,  and 
the  marshal  process  issuing  out  of  the  federal  courts.^ 

But  sometimes  service  may  legally  be  made  by  either 
of  two  or  more  officers,  as  may  be  provided  by  law,  and 
the  service  of  either  will  be  valid.^  This,  however,  is  a 
matter  subject  to  statutory  regulation  and  control,  and  in 
many  of  the  states  private  individuals  are  authorized,  un- 
der certain  conditions  and  restrictions,  to  serve  original 
process.^ 

So  officers  who  are  required  to  make  service  are  some- 
times authorized  to  appoint  special  deputies  or  bailiffs  to 
serve  a  particular  writ,  or  serve  process  within  a  limited 

1  Peck  V.  Strauss,  33  Cal.  680 ;  Allyn  v.  Davis,  10  Vt.  547 ;  Bank  of  Bur- 
lington V.  Catlin,  11  Vt.  106 ;  Dolbear  v.  Town  of  Hancock,  19  Vt.  389. 

2  Falvey  v.  Jones,  80  Ga.  130 ;  4  S.  E.  Rep.  264  ;  Kyle  v.  Kyle,  55  Ind. 
387. 

3  Peck  V.  Strauss,  33  Cal.  680.  *  Kyle  v.  Kyle,  55  Ind.  387. 
s  Barton's  Suit  in  Eq.  68. 

6  Parker  v.  Dacres,  1  Wash.  St.  190 ;  24  Pac.  Rep.  192. 
'  Johnson  v.  MacCoy,  32  W.  Va.  552 ;  9  S.  E.  Rep.  887. 


SERVICE    OF    PROCESS.  253 

territory.^  And,  without  statutory  anthority,  an  officer 
may  appoint  a  special  bailiff  to  do  a  particular  act.^  An 
infant  may  be  appointed  a  special  bailiff  to  do  a  particular 
act,  but  not  as  a  general  deputy.'^ 

The  appointment  of  a  general  deputy  vests  him  with- 
authority  to  do  every  act  that  might  be  done  by  the  prin- 
cipal, except  to  appoint  a  deputy,  and  any  agreement  or 
understanding  between  the  principal  and  deputy,  limiting 
the  extent  of  his  authority,  is  void  as  to  the  public*  And, 
while  a  deputy  can  not  appoint  a  deputy,  he  may  appoint 
another  to  do  a  particular  a"ct,  and  therefore  may  author- 
ize a  private  person  to  serve  a  particular  writ.^  But  where 
the  appointment  is  special,  the  authority  of  the  deputy  is 
limited  by  such  appointment.  Therefore,  where  an  ap- 
pointment is  made  by  an  officer  having  authority  to  serve 
process  throughout  the  limits  of  the  state,  of  a  deputy, 
or  special  bailiff,  to  serve  all  process  within  a  certain 
county,  a  service  by  such  deputy  in  another  county  is  in- 
valid.* 

So  a  special  bailiff  appointed  to  serve  a  particular  writ, 
can  not  legally  go  beyond  the  authority  thus  given  him, 
and  if  he  does,  his  acts  are  invalid.  But  where  one  ap- 
pointed as  a  special  bailiff  is  competent  to  make  service  as 
a  private  individual,  his  service  may  be  good  under  the 
statute,  although  insufficient  under  his  special  appoint- 
ment. In  such  case,  however,  the  proof  of  service  must 
be  different.  It  can  not  be  by  the  return  of  the  party 
serving  the  writ,  in  the  name  of  his  principal,  but  must  be 
by  his  affidavit  showing  his  competency  to  serve  the  writ 
as  a  private  individual,  and  that  as  such  he  duly  served 

1  Guarantee  Trust,  etc.,  Co.  v.  Buddington,  2P>  Fla.  514;  2  Sou.  Rep. 
885. 

^  New  Albany,  etc.,  R.  R.  Co.  v.  Grooms,  9  Ind.  243 ;  Proctor  v. 
Walker,  12  Ind.  660. 

•''  New  Albany,  etc.,  R.  R.  Co.  v.  Grooms,  9  Ind.  243. 

*  Willingbam  v.  State,  21  Fla.  776,  778 ;  Guarantee  Trust,  etc.,  Co.  v. 
Buddington,  23  Fla.  514  ;  2  Sou.  Rep.  885,  889. 

^  Guarantee  Trust,  etc.,  Co.  v.  Buddington,  23  Fla.  514 ;  2  Sou.  Rep. 
885,  889. 


254  MEANS    OF    ACQUIRING    JURISDICTION. 

the  same.^  An  appointment  of  a  special  bailiff,  without  a 
seal,  where  the  law  requires  such  appointment  to  be  made 
under  seal,  renders  the  bailiff  a  de  facto  officer,  and  the 
service  of  a  writ  under  such  appointment  is  valid.^  It  has 
been  held  that  where  the  statute  required  the  appointment 
to  be  indorsed  on  the  writ,  a  service  under  a  verbal  ap- 
pointment was  defective,  but  whether  such  service  was 
void  or  not  was  not  decided.^  It  is  believed,  however, 
that  under  the  more  liberal  rule  which  prevails  at  the 
present  day,  such  a  service,  which  affords  full  notice  to  the 
defendant,  should  be  upheld  as  against  a  collateral  attack. 
Technical  objections  of  this  kind  to  the  service  of  process 
have  but  little  to  recommend  them. 

At  common  law  a  constable  has  the  authority,  in  case  of 
sickness  or  necessary  absence,  to  appoint  a  deputy  to  per- 
form his  duties  during  his  inability  to  act,  but  not  to  ap- 
point a  permanent  deputy.*  And  in  the  absence  of  any 
statute  on  the  subject,  the  common  law  rule  as  to  the  ex- 
tent to  which  he  may  delegate  his  powers  applies.^  There- 
fore, it  is  held  that  in  the  absence  of  any  statute  on  the 
subject,  the  service  of  process  by  one  acting  under  a  regu- 
lar appointment  as  a  permanent  deputy  gives  the  court  no 
jurisdiction.*  A  sheriff  can  not,  in  his  official  capacity, 
serve  process  out  of  his  county,  nor  can  a  private  individ- 
ual, appointed  by  the  court  in  one  county,  serve  process  in 
another.^  A  direction  of  the  writ  to  a  wrong  officer  does 
not  always  render  the  service  of  it  invalid.  If,  for  exam- 
ple, a  writ  is  directed  to  the  wrong  officer,  but  is  served  by 
the  proper  one,  the  writ  may  be  amended,  and  the  service 
is  valid.^     But  where  one  officer  is  authorized  to  serve  pro- 

'  Post,  sec.  39 ;  Higgins  v.  Beckwith,  14  S.  W.  Rep.  931. 

=*  Jewell  V.  Gilbert,  64  N,  H.  13 ;  5  Atl.  Rep.  80. 

3  Barry  v.  Hovey,  30  Ohio  St.  344. 

*  Prickett  v.  Cleek,  11  Pac.  Rep.  49. 

^  Jobson  V.  Fennell,  35  Cal.  711 ;  Prickett  v.  Cleek,  11  Pac.  Rep.  49. 

^  Lillard  v.  Brannin,  16  S.  W.  Rep.  349;  Dolbear  v.  Town  of  Hancock, 
19  Vt.  389. 

'  Pecotte  V.  Oliver,  10  Pac.  Rep.  302;  Lyon  v.  Fish,  20  Ohio,  100,  105; 
Walden  v.  Davison,  15  Wend.  574;  Hearsey  v.  Bradbury,  9  Mass.  95; 


i 


SERVICE    OF    PROCESS.  255 

cess  only  where  some  other  officer  is  disqualified,  the  pre- 
sumption is  that  such  officer  is  qualified,  and  the  contrary 
must  be  affirmatively  shown  where  service  is  made  by  the 
officer  so  conditionally  authorized,  or  the  service  will  be 
held  invalid.^  And  the  same  rule  applies  where  the  couri 
is  authorized  to  appoint  one  to  serve  process  where  the  of- 
ficer authorized  by  law  to  serve  the  same  is  disqualified.^ 
Where  private  individuals  acting  independently  of  any  of- 
ficer, or  acting  under  special  appointment,  are  authorized 
to  serve  process,  service  by  them  is  as  eflective,  if  properly 
made,  as  service  by  an  officer.^  At  common  law,  where 
the  sheriff  was  disqualified  to  serve  process  in  a  given  case, 
the  duty  devolved  upon  the  coroner.^  In  this  country,  pro- 
vision is  usually  made,  in  case  of  the  disqualification  of 
the  officer  who  is  required  by  law  to  act,  for  some  other 
designated  officer  to  make  service.  And  if  no  officer  is 
competent  to  make  service,  provision  is  usually  made  for 
the  appointment  of  some  suitable  person  to  act,  by  the 
court  before  whom  the  action  is  pending.  In  order  to 
render  a  service,  made  by  one  not  the  officer  authorized  by 
law  to  act,  valid,  it  must  appear  that  such  officer  was  dis- 
qualified to  make  the  service,  or  that  such  person  is  au- 
thorized by  law  to  serve  such  process.^  The  general  doc- 
trine is  that  an  officer  can  not  serve  process  in  his  own 
case.*  But  there  are  cases  holding  that  the  rule  does  not 
apply  to  the  service  of  a  summons,  which  is  a  mere 
notice.®  And  this  seems  to  accord  with  the  doctrine 
that  a  summons  is  intended  merely  to  notify  the  party, 
and  give  him  an  opportunity  to  be  heard.^  Notice  given 
by  service  of  a  writ  by  an  interested  party  is  as  much 
notice,  and  as  effectual  for  the  purpose  for  which  it 
is  required  to  be  issued  and  served,  as  if  served  by  one 

Campbell  v.  Stiles,  9  Mass.  217;  Hibbert  v.  Smith,  50  Cal.  511  ;  Chad- 
wick  V.  Divol,  12  Vt.  499. 

•  Gowdy  V.  Sanders,  88  Ky.  .346 ;  11  S.  W.  Rep.  82. 

^  Bruner  v.  Superior  Court,  92  Cal.  239 ;  28  Pac.  Rep.  341. 

^  Peck  v.  Strauss,  33  Cal.  678.  *  Ante,  sec.  36. 

^  A7ite,  sec.  36;  Collais  v.  McLeod,  8  Ire.  Law  (X.  Car.)  221 ;  49  Am. 
Dec.  376. 

«  Putnam  r.  Man,  3  Wend.  202 ;  20  Am.  Dec.  686.  ^  Ante,  sec.  36. 


256 


MEANS    OF    ACQUIRING   JURISDICTION. 


entirely  disinterested.  The  only  objection  that  can  be 
made  to  the  allowance  of  such  service  is  the  temptation 
it  afibrds  to  the  making  of  insufficient  service  and  false 
returns.  Where  private  individuals  are  authorized  by 
statute  to  serve  process  it  is  generally  required  that  such 
person  shall  not  be  a  party  to  the  suit  or  interested  in  the 
result  of  the  action.'  So  a  party  to  the  suit  can  not  serve 
his  own  writ.^ 

Where  it  is  provided  that  only  persons  not  interested 
in  the  action  shall  be  appointed  to  serve  process,  a  service 
by  an  interested  party,  although  regularly  appointed  in  all 
other  respects,  is  void  and  confers  no  jurisdiction  on  the 
court.* 

If  a  court  is  authorized,  on  certain  conditions,  to  ap- 
point a  private  individual  to  serve  process,  an  appoint- 
ment where  such  conditions  do  not  exist  confers  no  au- 
thority to  serve  the  writ.*  But  where  the  requisite  qual- 
ifications or  the  necessity  for  the  appointment  are  not  re- 
quired to  be  set  out  in  the  appointment,  they  need  not 
appear  affirmatively,  but  will  be  presumed.^  It  is  other- 
wise if  the  appointment  or  direction  of  the  writ  giving 
a  special  authorization  to  serve  it,  is  required  to  state 
the  reason  for  such  appointment  or  direction  of  the 
writ.^  And  where  the  appointment  or  special  authoriza- 
tion is  required  to  set  forth  the  reason  therefor  it  is  held 
that  it  can  not  be  amended,  after  service,  so  as  to  render 
such  service  valid.^ 

Where  private  individuals  of  prescribed  qualifications 
are  authorized  to  serve  process,  it  must  appear  that  they 

•  Gadsby  v.  Stimer,  79  Mich.  260;  44  N.  W.  Rep.  606;  Union  Mut.  Fire 
Ins.  Co.  V.  Page,  61  Mich.  72  ;  27  N.  W.  Rep.  859. 

2  Hemmer  v.  Wolfer,  11  N.  E.  Rep.  885. 

»  Union  Mut.  Fire  Ins.  Co.  v.  Page,  61  Mich.  72 ;  27  N.  W.  Rep.  859. 

*  Gadsby  V.  Stimer,  79  Mich.  260;  44  N.  W.  Rep.  606;  Union  Mut. 
Fire  Ins.  Co.  v.  Page,  61  Mich.  72;  27  N.  W.  Rep.  859;  Bruner  v.  Su- 
perior Court,  92  Cal.  239;  28  Pac.  Rep.  341. 

5  Morse  v.  Carpenter,  31  Neb.  224 ;  47  N.  W.  Rep.  853. 
«  Dolbear  v.  Town  of  Hancock,  19  Vt.  389. 


SERVICE    OF    PROCESS.  257 

have  the  necessary  qualifications  or  the  service  can  not  be 
upheld.^ 

Where  a  sheriff  is  empowered  to  authorize  another 
person  to  serve  a  summons,  by  indorsement  thereon,  such 
indorsement  on  an  original  summons  gives  no  authority 
to  serve  an  alias  summons  after  the  original  has  been  re- 
turned.^ 

2.  When  may  be  served. — As  a  general  rule  a  summons 
can  not,  legally,  be  served  before  the  filing  of  the  com- 
plaint. But  in  some  of  the  states  notice  in  the  nature  of 
a  summons  that  a  suit  will  be  brought  in  the  future  is  au- 
thorized.^ And  such  a  notice  may  properly  be  served  before 
the  complaint  is  filed.  Independently  of  such  or  similar 
statutory  provisions,  the  service  of  a  summons  before  the 
suit  is  commenced  confers  no  jurisdiction. 

A  summons  becomes  functus  officio  after  the  return  day 
thereof,  and  its  service  thereafter  is  invalid.^  The  remedy 
of  the  plaintiff  in  such  a  case  is  to  procure  an  alias  sum- 
mons.^ 

The  service  of  process,  regular  in  form,  will  not  confer 
jurisdiction  where  such  process  was  not  authorized;  for 
example,  where  the  clerk  had  issued  one  citation  and  was 
not  authorized  to  issue  another  without  an  order  of 
court.®  But  it  has  been  held  that  a  summons  may  be 
dated,  issued,  and  executed  on  the  return  day.''  It  is 
held,  however,  in  some  cases,  that  a  service  of  summons 
on  the  return  day  is  voidable,  but  not  void.^ 

3.  Where  may  be  served. — The  general  rule  is  that  the 
proctss  of  a  court  can  not  extend  beyond  the  territorial 
jurisdiction  of  the  court,  and  that,  unless  expressly  au- 

*  Barney  v.  Vigoreaux,  75  Cal.  376;  17  Pac.  Rep.  433. 

*  Thompson  v.  ^Nloore,  15  S.  W.  Rep.  6.  *  Ante,  sees.  35,  36. 

*  Weems  v.  Raiford,  8  Sou.  Rep.  260 ;  Harrington  v.  Harrington,  16  S. 
W.  Rep.  538;  Peck  v.  La  Roche,  12  S.  E.  Rep.  638. 

^  Ante,  sec.  36;  Weems  v.  Raiford,  8  Sou.  Rep.  360. 
«  Peck  V.  La  Roche,  12  S.  E.  Rep.  638. 

'  Spragins  v.  West  Virginia  C.  &  P.  Ry.  Co.,  35  W.  Va.  139;  13  S.  E. 
Rep.  45. 
"  Meisse  r.  McCoy,  17  Ohio  St.  225. 

17 


258  MEANS    OF    ACQUIRING    JURISDICTION. 

thorized  by  law,  its  process  can  not  be  served  outside  of 
the  territory  over  which  it  has  jurisdiction.^  But  the 
authority  to  serve  process  out  of  the  territorial  jurisdic- 
tion of  the  court  may  be  given  by  statute.^  And  it  is  usu- 
ally provided  that  the  process  of  state  courts,  having  ju- 
risdiction over  counties,  or  other  territory  of  less  extent, 
shall  run  throughout  the  state  and  may  be  served  any- 
where therein.^  So,  in  some  of  the  states,  service  of  process, 
personally,  outside  of  the  state  is  authorized.*  But  when 
so  served  it  is  usually  treated,  not  as  personal,  but  as  con- 
structive service.^ 

It  is  not  necessary  that  the  party  served  shall  reside 
within  the  state,  or  other  territorial  jurisdiction,  in  order 
to  render  personal  service  therein  effective.  A  party  may 
be  served  if  he  is  voluntarily  within  the  jurisdiction  of 
the  court  temporarily.^  But  there  are  exceptions  to  this 
rule.  A  party  can  not  be  served  with  process  when  he  is 
a  non-resident  and  is  temporarily  within  the  state  or 
county  in  attendance  on  a  court,  either  as  a  party  or  a  wit- 
ness, or  while  going  to  and  returning  therefrom.''  A  party 
must  be  allowed  a  reasonable  time  to  return  to  his  own 
state  after  the  necessity  of  his  attendance  at  court  ceases, 

^  Ante,  sees.  13,  15 ;  United  States  v.  Crawford,  47  Fed.  Rep.  561 ;  Noyes 
V.  Canada,  30  Fed.  Rep.  665;  Masterson  v.  Little,  75  Tex.  682;  13  S.  W. 
Rep.  154. 

^  United  States  v.  Crawford,  47  Fed.  Rep.  561. 

3  Ante,  sec.  15 ;  Crawford  v.  Wilcox,  68  Tex.  109 ;  3  S.  W.  Rep.  695. 

*  Ante,  sec.  13. 

^  Ante,  see.  13;  Williams  v.  Welton,  28  Ohio  St.  451,467;  Brooklyn 
Trust  Co.  V.  Bulmer,  49  N.  Y.  84 ;  Denny  v.  Ashley,  12  Colo.  165  ;  20  Pac. 
Rep.  331;  Cudabac  v.  Strong,  67  Miss.  705;  7  Sou.  Rep.  543;  Bausman 
Tilley,  46  Minn.  66;  48  N.  W.  Rep.  459. 

^  Ante,  see.  13;  Rape  v.  Heaton,  9  Wis.  328,  343;  76  Am.  Dec.  269; 
Peabody  v.  Hamilton,  106  Mass.  220;  Thompson  v.  Cowell,  148  Mass. 
552;  20  N.  E.  Rep.  170;  Jewett  v.  Garrett,  47  Fed.  Rep.  625. 

'  Shaver  v.  Letherby,  41  N.  W.  Rep.  677 ;  Jacobson  v.  Hosmer,  76 
Mich.  234;  42  N.  W.  Rep.  1110;  First  Nat'l  Bank  v.  Ames,  39  Minn.  179; 
39  N.  W.  Rep.  308;  Andrews  v.  Lembeck,  46  Ohio  St.  38;  18  N.  E.  Rep. 
483 ;  Moletor  v.  Sinnen,  76  Wis.  308 ;  44  N.  W.  Rep.  1099 ;  Mitchell  v. 
Wixon,  53  Mich.  541 ;  19  N.  W.  Rep.  176;  Matthews  v.  Tufts,  87  N.  Y. 
568 ;  Kauflfman  r.  Kennedy,  25  Fed.  Rep.  785  ;  Larned  v.  Griffin,  12  Fed. 
Rep.  590;  Ex  parte  Healey,  53  Vt.  694;  38  Am.  Rep.  713. 


SERVICE    OF    PROCESS.  259 

and  no  longer.^  There  are  cases  holding  that  the  privilege 
only  protects  a  party  from  the  service  of  process  involving 
arrest,^  and  that  it  does  not  extend  to  parties  attending 
on  the  trial  of  civil  cases.^  But  the  decided  weight 
of  authority  is  the  other  way  on  both  of  these  proposi' 
tions. 

The  privilege  is  not  confined  to  persons  actually  attend- 
ing court,  but  extends  to  one  attending  before  a  referee  or 
other  person  authorized  to  take  testimony  in  a  pending 
action,*  and  to  creditors  attending  proceedings  in  bank- 
ruptcy ;^  but  not  to  one  attending  the  taking  of  a  deposi- 
tion to  be  used  in  another  state.^ 

The  immunity  does  not  depend  upon  statutory  provis- 
ions, but  is  upheld  as  necessary  for  the  due  administration 
of  justice/  The  right  does  not  depend  upon  citizenship, 
but  upon  residence.^  The  rule  is  not  confined  to  non- 
residents of  a  state.  It  applies  with  equal  force,  and  with 
like  reason,  to  a  resident  of  the  state  attending  court  out 
of  his  county.^ 

A  distinction  has  sometimes  been  made  between  resi- 
dent and  non-resident  suitors  and  witnesses,  in  case  of 
arrest,  it  being  held  in  case  of  residents  that  they  can  only 
be  discharged  from   arrest  by  filing  common  bail,  while 

1  Moletor  v.  Hinnen,  76  Wis.  808;  44  N.  W.  Rep.  1099;  Finch  v.  Gal- 
ligher,  12  N.  Y.  Sup.  487;  Bolgiano  v.  Gilbert  Lock  Co..  73  Md.  132;  20 
Atl.  Rep.  788;  Marks  v.  La  Societe,  etc.,  19  N.  Y.  Sup.  470. 

2  Case  V.  Rorabacher,  15  Mich.  537;  Christian  v.  Williams,  20  S.  W. 
Rep.  96 ;  Ellis  v.  De  Garmo,  24  Atl.  Rep.  579. 

3  Baldwin  v.  Emerson,  16  R.  I.  304 ;  15  Atl.  Rep.  83. 

*  Bridges  v.  Sheldon,  7  Fed.  Rep.  17,  42;  Hollender  r.  Hall,  18  N.  Y. 
C.  P.  394;  13  N.  Y.  Sup.  758. 

^  Matthews  v.  Tufts,  87  N.  Y.  568. 

«  Parker  v.  Marco,  61  Hun,  519 ;  16  N.  Y.  Sup.  325. 

'  Matthews  v.  Tufts,  87  N.  Y.  570. 

«  Hollender  v.  Hall,  18  N.  Y.  C.  P.  394;  13  X.  Y.  Sup.  758;  Thorp  r. 
Adams,  58  Hun,  603;  11  N.  Y.  Sup.  479;  Hollander  v.  Hall,  58  Hun, 
604;  11  N.  Y.  Sup.  521. 

«  Shaver  v.  Letherby,  41  N.  W.  Rep.  677;  Mitchell  v.  Wixon,  53  Mich. 
541;  19  N.  W.  Rep.  176;  Jacobson  v.  Hosmer,  76  Mich.  234;  42 
N.  W.  Rep.  1110;  Andrews  v.  Lembeck,  46  Ohio  St.  38;  18  N.  E.  Rep. 
483. 


'260  MEANS    OF    ACQUIRING    JURISDICTION. 

service  on  a  non-resident  will  be  set  aside  absolutely.' 
But  it  is  believed  that  no  reason  exists  for  any  such  dis- 
tinction.^ In  other  cases  it  is  held,  with  better  reason, 
that  service  upon  a  resident  in  attendance  at  court  out  of 
his  county  is  not  a  nullity,  but  the  court  will  control  the 
service,  and  either  set  it  aside,  change  the  venue,  or  other- 
wise remedy  any  special  disadvantage  entailed  upon  the 
defendant  by  such  service.^  And  in  some  of  the  states, 
provision  for  changing  the  venue  in  such  cases  is  made. 
But,  as  we  have  said,  the  great  weight  of  authority  is  to 
the  effect  that  the  same  rule  and  the  same  remedy  must 
apply  to  residents  and  non-residents,  in  the  absence  of  any 
statute  on  the  subject.  It  makes  no  difference  that  the 
attendance  of  the  party  as  a  witness  is  voluntary  and  with- 
out service  of  process.* 

In  some  of  the  cases  a  distinction  has  been  made  be- 
tween residents  and  non-residents  of  the  state  as  to  the 
privilege  from  service  of  civil  process  when  attending 
court.^  But  this  is  a  distinction  that  is  not  generally  re- 
cognized in  the  decided  cases,  as  has  been  shown  above. 
So  it  is  held  in  some  of  the  decided  cases,  against  the 
great  weight  ef  authority,  that  the  privilege  does  not  ex- 
tend to  a  non-resident  in  attendance  on  a  court  as  a  party, 
although  he  may  be  a  witness  also.^ 

The  exception  also  extends  to  one  who  has  been  induced 
to  come  within  the  jurisdiction  of  the  court  by  fraud,  or 
deception,  for  the  purpose  of  procuring  the  service.''  It 
has  been  held  in  one  case  that  a  deception  of  this  kind 
will  not  affect  the  jurisdiction  of  the  court  where  it  ap- 

1  See  Person  v.  Grier,  66  N,  Y.  124 ;  Hopkins  v.  Coburn,  1  Wend.  292  ; 
riechter  v.  Franko,  21  N.  Y.  C.  P.  34 ;  15  N.  Y.  Sup.  674. 

»  Larned  v.  Griffin,  12  Fed.  Rep.  590;  Sanford  v.  Chase,  3  Cow.  381. 

^  Massey  v.  Colville,  45  N.  J.  Law,  119;  46  Am.  Rep.  754. 

*  Larned  v.  Griffin,  12  Fed.  Rep.  590 ;  Bolgiano  v.  Gilbert  Lock  Co.,  73 
Md.  132 ;  20  Atl.  Rep.  788. 

^  Flechter  v.  Franko,  21  N.  Y.  C.  P.  34 ;  15  N.  Y.  Sup.  674. 

«  Capwell  V.  Sipe,  23  Atl.  Rep.  14. 

'  Ante,  sec.  22,  p.  117 ;  Van  Home  v.  Great  Western  Mfg.  Co.,  37  Kan. 
523;  15  Pac.  Rep.  562 ;  Chubbuck  v.  Cleveland,  37  Min.  466;  35  N.  W. 
Rep.  362 ;  Dunham  v.  Cressy,  4  N.  Y.  Sup.  13. 


ff 


SERVICE    OF    PROCESS.  261 

pears  that  no  injury  could  have  resulted  to  the  party .^ 
But,  fortunately,  a  court  does  not  usually  stop  to  consider 
the  consequences  when  the  use  of  its  process  has  been  ob- 
tained by  fraud.  Service  on  one  as  an  officer  of  a  corpo- 
ration, such  corporation  being  a  party,  is  within  the  rule-^ 

A  member  of  congress  is  privileged  from  the  service  of 
civil  process  as  well  as  from  arrest  while  in  attendance  at  a 
session  of  congress,  and  while  going  to  and  returning  there- 
from.^ And  a  slight  deviation  from  the  direct  route,  either 
going  or  coming,  does  not  affect  the  right.^  But  the  privi- 
lege only  extends  to  a  reasonable  time  forgoing  and  coming.* 
The  same  rule  applies  to  members  of  the  legislature.*  In 
some  of  the  cases  the  privilege  is  confined  to  process  in- 
volving arrest.^  But  the  principles  affecting  witnesses 
and  parties  in  attendance  at  court  are  equally  appli- 
cable to  cases  of  this  kind,  and  the  privilege  should  be 
the  same. 

The  question  of  privilege  is  usually  raised  by  motion  to 
quash  the  writ,  set  aside  the  service,  or  dismiss  the  action. 
But  the  question  may  be  raised  by  plea  in  abatement.^ 
And  in  some  of  the  cases  the  service  of  process,  under 
such  circumstances,  is  treated  as  a  contempt  of  the  court, 
and  the  plaintiff  compelled  to  discontinue  his  action  or  be 
committed." 

Where  service  of  one  defendant,  out  of  the  county,  is 
authorized  where  his  co-defendant  is  a  resident  of  the 
county  in  which  the  action  is  brought,  the  resident  defend- 
ant must  have  a  real  and  substantial  interest  in  the  sub- 
ject of  the  action,  adverse  to  the  plaintiff,  or  the  service 

'  Commercial  Nat'l  Bank  v.  Davidson,  18  Or.  57;  22  Pac.  Rep.  517. 

'  Post,  sec.  43 ;  Shehan  r.  Bardford  B.  &  K.  R.  Co.,  3  N.  Y.  Sup.  790 ; 
Mulhearn  v.  Press  Pub.  Co.,  53  N.  J.  Law,  153  ;  21  Atl.  Rep.  186. 

3  Miner  v.  Markham,  28  Fed.  Rep.  387,  390. 

*  Hopkin  V.  Jenckes,  8  R.  I.  453;  5  Am.  Rep.  597,  601. 

'"  Miner  v.  Markham,  28  Fed.  Rep.  387,  390;  Doty  v.  Strong,  1  Pinney 
(Wis.),  84. 

«  Gentry  v.  Griffith,  27  Tex.  461. 

'  Lamed  v.  Griffin,  12  Fed.  Rep.  590. 

8  In  re  Healey,  53  Vt.  694  ;  38  Am.  Rep.  713. 


262  MEANS    OF    ACQUIRING   JURISDICTION. 

will  be  set  aside.'  For  a  defective  service  of  process,  the 
remedy  is  by  a  direct  attack  upon  it  in  the  trial  court.  If 
a  default  has  been  taken,  the  question  can  be  raised  by  a 
motion  to  set  aside  the  default.^  The  question  can  not  be 
raised  for  the  first  time  in  the  appellate  court.^  But  this 
rule  applies  only  to  defective,  and  not  to  void  service.  If  the 
service  is  void,  and  no  act  waiving  service  or  submitting 
the  person  to  the  jurisdiction  of  the  court  has  been  done, 
the  jurisdiction  of  the  court  may  be  attacked  at  any  time 
directly  or  collaterally.^  But  it  must  be  borne  in  mind 
that  an  appeal  from  a  judgment  is  generally  held  to  be  a 
waiver  of  want  of  service  of  process.* 

4.  How  may  be  served. — Generally,  the  writ  is  required 
to  be  served,  personally,  upon  the  defendant.  Handing 
the  writ  to  a  third  party,  and  the  immediate  delivery 
thereof,  by  him,  to  the  defendant,  in  the  presence  of  the 
officer,  is  a  sufficient  personal  service.^  But  there  must  be 
an  actual  delivery  of  it  to  the  party  to  be  served,  in  the 
presence  of  the  officer.^  In  some  of  the  states,  provision  is 
made  for  leaving  a  copy  of  the  writ  at  the  place  of  resi- 
dence of  the  defendant.  Usually  these  statutes  require 
that  the  writ  shall  not  only  be  left  at  the  place  of  residence 
of  the  defendant,  but  that  it  be  delivered,  there,  to  some 
member  of  the  household  of  proper  age  and  discretion. 
A  delivery  of  the  writ  to  a  third  party  is  not  always  re- 
quired, however.  Where  delivery  to  a  third  party  is  re- 
quired, leaving  a  copy  of  the  summons  with  the  husband 
for  the  wife,  is  a  valid  service  on  her.^  A  strict  compliance 
with  statutory  provisions  of  this  nature  is  required  by  the 
courts.^ 

1  Dunn  V.  Haines,  17  Neb.  560 ;  23  N.  W.  Rep.  501 .  Allen  v.  Miller,  11 
Ohio  St.  374. 

^  De  Armond  v.  Adams,  25  Ind.  455. 

'  Ante,  sees.  22,  23.  *  Ante,  sees.  22,  p.  110. 

6  Palmer  v.  Belcher,  21  Neb.  58  ;  31  N.  W.  Rep.  262. 

«  Holliday  v.  Brown,  50  N.  W.  Rep.  1042. 

^  McLane  t-.Piaggio,  24  Fla.  71  ;  3  Sou.  Rep.  823,  827. 

«  Settlemier  v.  Sullivan,  97  U.  S.  444  ;  Jenkins  r.  Crofton,  9  S.  W.  Rep. 
406 ;  Swift  v.  Meyers,  37  Fed.  Rep.  37  ;  Laney  v.  Garbee,  105  Mo.  355 ;  16 
S.  W.  Rep.  831. 


I 


SERVICE    OF    PROCESS.  263 

If  service  by  leaving  a  copy  is  only  authorized  where 
the  defendant  can  not  be  found,  the  proof  of  service  must 
show  that  he  can  not  be  found  or  the  leaving  of  a  copy 
as  provided  for  is  not  a  valid  service,^ 

"Where  a  copy  must  be  left  with  one  person,  if  living,- 
and  if  not  with  another,  service  upon  the  latter,  while  the 
former  is  living,  is  invalid.^ 

In  most  of  the  states  a  copy  of  the  declaration,  com- 
plaint, or  petition,  is  required  to  be  served  with  the  writ 
on  at  least  one  of  the  defendants,  and  where  so  required 
the  service  of  such  copy  is  necessary  to  give  the  court  ju- 
risdiction.^ And  where  the  law  so  provides  the  officer 
must  deliver  such  copy  whether  he  is  commanded  to  do  so 
by  the  writ  or  not.*  So  if  a  certified  copy  is  required  to  be 
served  the  service  of  a  copy  not  certified  is  insufficient.^ 

It  is  held,  in  some  of  the  cases,  that  where  partners  are 
sued  in  their  individual  names  and  a  member  of  the  firm 
is  absent  from  the  state,  service  on  the  other  partner  is 
sufficient  to  bind  the  absent  defendant  at  least  as  to  the 
parnership  property.  And  this,  too,  where  the  defendants 
had  ceased  to  be  partners  at  the  time  the  suit  was  brought.® 
But  it  is  difficult  to  see  upon  what  principler  such  a  doc- 
trine can  be  maintained.  It  is  certainly  a  rule  that  is  cal- 
culated to  work  great  injury  and  one  subject  to  great  abuse. 
Such  a  doctrine  is  opposed  to  the  well  settled  rule  of  law 
that  a  party  must  be  served  with  process  and  be  given  an 
opportunity  to  be  heard  before  judgment  can  be  taken 
against  him.^ 

In  some  of  the  states  special  provision  is  made  for  the 
service  of  process  where  the  defendants  are  sued  as  part- 
ners, as,  for  example,  by  leaving  a  copy  at  their  place  of 
business.     Under  such   a  statute  service  on   an  agent  of 

'  Settlemier  v.  Sullivan,  97  U.  S.  444 ;  post,  sec.  39. 

'  Jenkins  v.  Crofton,  9  S.  W.  Rep.  406. 

^  Southern  Pac.  R.  R.  Co.  v.  Superior  Court,  59  Cal.  471. 

*  Crawford  v.  Wilcox,  68  Tex.  109 ;  3  S.  W.  Rep.  695. 

*  Lauderdale  v.  R.  &  T.  A.,  etc.,  Co.,  80  Tex.  496;  16  S.  W.  Rep.  308. 
«  Winters  v.  Means,  25  Neb.  241 ;  41  N.  W.  Rep.  157. 

'  Ante,  sees.  32,  33. 


264  MEANS    OF    ACQUIRING    JURISDICTION. 

the  firm,  at  some  other  place  than  that  designated  in  the 
statute,  is  insufficient,  although  service  on  the  agent,  at  the 
proper  place,  is  allowed.^  But  such  a  statute  has  been  held 
not  to  apply  where  partners  are  sued  in  their  individual 
names.^ 

Where  service  of  a  writ,  by  copy,  is  required  or  author- 
ized, a  variance  between  the  original  and  the  copy  is  usually 
held  to  be  an  irregularity  of  which  advantage  must  be 
taken  by  motion,  before  judgment,  and  does  not  afi'ect  the 
jurisdiction  of  the  court.* 

Certainly  this  is  the  correct  doctrine  where  it  does  not 
appear  that  the  defendant  was  injured  by  the  mistake. 
And  the  question  whether  he  was  so  injured  or  not  could 
only  be  determined,  properly,  upon  a  direct  attack  made 
by  him  upon  the  service.  But  the  failure  to  serve  a  copy 
renders  the  service  void.* 

Special  provisions  for  service  of  process  on  persons  la- 
boring under  legal  disabilities  or  acting  in  official  capaci- 
ties are  frequently  made  by  statute.  And  when  made  they 
must  be  followed.  It  may  be  well,  in  this  connection,  to 
consider,  briefly,  these  special  modes  of  service. 

a.  Service  on  nmiors. — The  most  common  provision  for 
service  on  minors  is  that  the  writ  shall  be  served,  and  its 
contents  be  made  known,  to  some  member  of  the  family 
of  such  minor  of  proper  age  and  discretion.^ 

A  literal  compliance  with  such  a  statute  is  not  always 
sufficient.  Thus  it  is  held  that  where  the  plaintiff  in  the 
action  is  a  member  of  the  family  of  a  minor  defendant  and 
in  all  other  respects  a  competent  person  upon  whom  to 
serve  the  writ,  a  service  upon  him  is  insufficient,  because 
of  his  adverse  interest.® 

Such  a  service  has  been   held  sufficient  where  the  writ 

1  Mitchell  &  Rammelsburg  Fur.  Co.  v.  Simpson,  40  Fed.  Rep.  805. 
^  Herron  v.  Cole,  25  Neb.  692  ;  41  N.  W.  Rep.  765. 
'  Low  V.  Kalamazoo  Circuit  Judge,  61  Mich.  35  ;  27  N.  W.  Rep.  877. 
*  Wilkinson  v.  Chilson,  71  Wis.  131 ;  36  N.  W.  Rep.  836. 
!•  Hemmer  v.  Wolfer,  11  N.  E.  Rep.  885. 

«  Hemmer  v.  Wolfer,  11  N.  E.  Rep.  885 ;  Hemmer  v.  Wolfer,  124  111. 
435  ;  16  N.  E.  Rep.  652. 


SERVICE    OF    PROCESS.  265 

was  required  to  be  served  on  the  father  of  the  minor  and 
no  other  mode  of  service  was  provided.^  But  the  law 
which  compelled  such  a  decision  was  subsequently  changed.^ 
Where  a  copy  is  required  to  be  left  with  the  father,  if  liv- 
ing, and  if  not  with  the  mother,  etc.,  naming  others  upon- 
whom  service  may  be  made,  in  their  order,  a  service  upon 
any  one  of  the  latter,  when  one  of  the  former  is  living,  is 
not  a  valid  service.^ 

An  insufficient  service  on  a  minor  is  not  cured  by  the 
appointment  of  a  guardian  ad  litem} 

h.  Service  on  insane  persons. — If  an  insane  person  has  a 
guardian,  provision  is  usually  made  for  service  upon  such 
guardian.  If  not  upon  any  person  having  such  person  in 
custody.  Some  of  the  statutes  provide  for  a  commission 
upon  whom  service  may  be  made.  And  where  such  per- 
son has  no  guardian,  a  guardian  ad  litem  is  appointed  to 
represent  him  and  look  after  his  interests.  There  is 
nothing  peculiar  about  service  upon  an  insane  person  that 
calls  for  special  consideration  in  this  connection. 

c.  Service  on  married  women. — As  a  rule,  under  the  codes, 
a  married  woman  must  be  served  in  the  same  manner  that 
service  is  made  on  other  persons.^ 

Where  the  action  is  not  to  affect  the  wife's  separate 
property,  but  her  inchoate  interest  in  real  estate  owned  by 
her  husband,  service  on  the  husband  alone  has  been  held 
to  be  sufficient  in  an  action  to  foreclose  a  mortgage.^  But 
this  is  not  the  generally  accepted  rule  at  the  present  day. 
The  rule  is  that  if  a  wife  has  such  an  interest  as  that  an 
action  against  her  is  proper,  she  is  entitled  to  notice  the 
same  as  any  other  person.  The  common  law  rule  was,  in 
this,  as  well  as  in  many  other  respects,  that  the  husband 
and  wife  were  one,  and  that  service  on  the  husband  was, 
for  that  reason,  service  on  both,  even  where  the  wife  was 

1  Donaldson  v.  Stone,  11  S.  W.  Eep.  462. 

»  Tyler  v.  Jewell,  11  S.  W.  Rep.  25. 

3  Jenkins  v.  Crofton,  9  S.  W.  Rep.  406. 

*  Hogle  V,  Hogle,  2  N.  Y.  Sup.  172;  Pinckney  v.  Smith,  26  Hun,  624. 

">  Holliday  v.  Brown,  50  N.  W.  Rep.  1042. 

«  Feitner  v.  Lewis,  119  N.  Y.  1.31 ;  23  N.  E.  Rep.  296. 


266  MEANS    OF    ACQUIRLNG    JURISDICTION. 

an  infant  or  insane.^  And  where  the  common  law  dis- 
abilities of  the  wife  are  still  maintained,  the  doctrine  that 
such  a  service  is  binding  upon  her  no  doubt  still  exists, 
unless  abrogated  or  changed  by  statute.  But  in  many  of 
the  states  the  disabilities  of  married  women  have  been  en- 
tirely removed,  and  in  others  very  materially  modified. 

d.  Service  on  persons  acting  in  an  official  capacity. — What 
is  said  in  this  connection  will  not  include  the  question  of 
service  on  corporations  through  their  ofiicers  and  agents. 
That  subject  will  be  taken  up  in  another  section.^ 

In  the  absence  of  some  statute  requiring  a  different  mode, 
service  upon  one  acting  in  an  official  capacity,  and  sued 
as  such  officer,  does  not  differ  from  the  mode  of  service 
required  in  actions  against  private  individuals.  But  spe- 
cial provision  is  sometimes  made  for  service  upon  public 
officers,  and  when  such  provision  is  made  of  course  the 
statute  must  be  followed, 

38.  Constructive  service  of  process. — The  term  con- 
structive notice  is  usually  understood  to  mean  some  such 
notice  as  may,  or  may  not,  come  to  the  actual  knowledge 
of  a  party  as  distinguished  from  actual  personal  notice,^ 
as,  for  example,  publication  of  a  notice  in  a  newspaper  or 
posting  the  same.  But  the  term  has  been  made  to  include 
actual  or  personal  notice,  so  far  as  the  legal  effect  of  serv- 
ice is  concerned,  in  some  cases,  as,  for  example,  in  case  of 
personal  service  out  of  the  state  in  which  the  court  has 
jurisdiction.*  This  mode  of  giving  notice  is  exceptional, 
and  the  requirements  of  statutes  authorizing  it  must  be 
complied  with  in  every  material  respect.^  The  question 
as  to  the  sufficiency  of  constructive  notice  to  confer  juris- 
diction is  separated,  necessarily,  into  several  divisions, 
amongst  others,  the  following,  which  will  be  considered  in 
this  connection :  a.  In  what  cases  constructive  notice  is 
allowed,  b.  The  affidavit,  c.  The  officer's  return  as  a 
basis  for  publication,    d.  The  order  for  publication,    e.  The 

1  Feitner  v.  Lewis,  119  N.  Y.  131 ;  23  N.  E.  Rep.  296.        =*  Post,  sec.  43. 
3  Anderson's  Die.  of  Law,  714.  *  Ante,  sees.  13,  14,  32,  33. 

^  Arde,  sec.  32,  1  Black  on  Judg.,  sec.  232. 


CONSTRUCTIVE  SERVICE  OF  PROCESS.  267 

publication.    /.  Proof  of  publication,     g.  Personal  service 
out  of  the  state. 

a.  In  what  cases  constructive  notice  is  allowed. — As  has 
been  said  elsewhere,  the  question  as  to  the  kind  of  notice 
that  shall  be  given  in  any  class  of  cases,  in  actions  against 
its  own  citizens,  is  under  the  control  of  the  state,  and  so 
long  as  the  constitutional  provision  against  the  taking  of 
property  without  due  process  of  law  is  not  violated,  con- 
structive notice  may  undoubtedly  be  substituted  for  actual 
notice.^  But  if  such  power  exists  in  the  states,  there 
seems  to  be  no  disposition  to  exercise  it.  Therefore,  the 
general  rule  on  the  subject  is,  that  a  purely  personal  action 
can  not  be  maintained  upon  constructive  notice,  and  a 
personal  judgment  rendered  thereon  even  against  one  re- 
siding within  the  state.^  So  in  case  of  a  judgment  against 
a  non-resident.^ 

*  Ante,  sees.  32,  33. 

2  Ante,  sees.  13,  32,  33;  Quarl  v.  Abbett,  102  Ind.  233 ;  52  Am.  Kep.  662; 
Pennoyer  v.  Neff,  95  U.  S.  714 ;  Bardwell  v.  Anderson,  44  Minn.  97 ;  40  N. 
W.  Rep.  315;  Williams  t'.  Welton,  28  Ohio  St.  451,  467;  1  Black  on 
Judg.,  sec.  220;  Winfree  v.  Bagley,  102  N.  C.  515;  9  S.  E.  Rep.  198. 

3  Ante,  sees.  13,  32,  33 ;  Eliot  v.  McCormick,  144  Mass.  10 ;  10  N.  E.  Rep. 
705;  Bearing  v.  Bank  of  Charleston,  5  Ga.  497 ;  48  Am.  Dec.  300;  Mohr 
V.  Manierre,  101  U.  S.  417 ;  Winfree  v.  Bagley,  102  N.  C.  515 ;  9  S.  E.  Rep. 
198;  Farmers,  etc.,  Bank  v.  Bank  of  Allen  Co.,  88  Tenn.  279;  12  S.  W. 
Rep.  545;  Beckett  v.  State,  30  N.  E.  Rep.  536. 

"  The  framers  of  the  constitution,  in  establishing  the  federal  judiciary, 
assumed  that  it  would  be  governed  in  the  administration  of  justice  by 
those  settled  principles  then  in  force  in  the  several  states,  and  prevail- 
ing in  the  jurisprudence  of  the  country  from  which  our  institutions 
were  principally  derived.  Among  them  none  were  more  important 
than  those  determining  the  manner  in  which  the  jurisdiction  of  the 
courts  could  be  acquired.  This  necessarily  depended  upon  the  nature 
of  the  subject  upon  which  the  judicial  power  was  called  to  act.  If  it 
was  invoked  against  the  person,  to  enforce  a  liability,  the  personal  cita- 
tion of  the  defendant  or  his  voluntary  appearance  was  required.  If  it 
was  called  into  exercise  with  reference  to  real  property  by  proceedings 
in  rem.,  or  of  that  nature,  a  different  mode  of  procedure  was  usually 
necessary,  such  as  a  seizure  of  the  property,  with  notice,  by  publication 
or  otherwise,  to  parties  having  interests  which  might  be  affected.  The 
rules  governing  this  matter  in  these  and  other  cases  were  a  part  of  the 
general  law  of  the  land,  established  in  our  jurisprudence  for  the  protec- 
tion of  rights  of  persons  and  property  against  oppression  and  spolia- 


268  MEANS   OF   ACQUIRING  JURISDICTION. 

A  persoual  judgment  is  one  which  binds  the  judgment 
defendant  personally  and  creates  a  lien  upon  his  property 
generally.^  Therefore,  the  right  to  proceed  upon  con- 
structive process  is  allowed  in  cases  in  rem.f  or  cases  in 
which  personal  actions  are  prosecuted  and  property  within 
the  jurisdiction  of  the  court  is  sought  to  be  reached  by 
attachment  or  other  like  process,  in  which  case  a  personal 
judgment  can  not  be  rendered,  but  the  relief  must  be  con- 
fined to  an  application  of  the  property  to  the  satisfaction 
of  the  plaintiff's  claim.^    And  the  fact  that  one  of  the 

tion.  And  when  the  courts  of  the  United  States  were  invested  with  ju- 
risdiction over  controversies  between  citizens  of  different  states,  it  was 
expected  that  these  rules  should  be  applied  for  the  security  and  protec- 
tion of  the  non-resident  citizen.  The  constitutional  provision  owed  its 
existence  to  the  impression  that  state  prejudices  and  attachments  might 
sometimes  affect  injuriously  the  regular  administration  of  justice  in  the 
state  courts.  And  the  law  of  congress  which  was  passed  to  give  effect 
to  the  provision,  made  it  optional  with  the  non-resident  citizen  to  re- 
quire a  suit  against  him,  when  commenced  in  a  state  court,  to  be  trans- 
ferred to  a  federal  court.  This  power  of  removal  would  be  of  little 
value,  and  the  constitutional  provision  would  be  practically  defeated,  if 
the  ordinary  rules  established  by  the  general  law  for  acquiring  jurisdic- 
tion in  such  cases  could  be  thwarted  by  state  legislation  or  the  decision 
of  the  local  courts.  In  some  instances,  the  states  have  provided  for  per- 
sonal judgments  against  non-residents  without  personal  citation,  upon  a 
mere  constructive  service  of  process  by  publication ;  but  the  federal 
courts  have  not  hesitated  to  hold  such  judgments  invalid.  Pennoyer  v. 
Neff,  96  U.  S.  744.  So,  on  the  other  hand,  if  the  local  courts  should 
hold  that  certain  conditions  must  be  performed  before  jurisdiction  is 
obtained,  and  thus  defeat  rights  of  non-resident  citizens  acquired  when 
a  different  ruling  prevailed,  the  federal  courts  would  be  delinquent  in 
duty  if  they  followed  the  later  .decision."  Mohr  v.  Manierre,  101  U.  S. 
421. 

1  Quarl  V.  Abbett,  102  Ind.  233;  52  Am.  Eep.  662. 

2  Pennoyer  v.  Neff,  95  U.  S.  714,  723 ;  Boswell  v.  Otis,  9  How.  336 ; 
Lydiard  v.  Chute,  45  Minn.  277 ;  47  N.  W.  Rep.  967. 

^  Ante,  sees.  14,  23,  25,  32;  Freeman  on  Judg.,  sec.  607a;  Quarl  v.  Ab- 
bett, 102  Ind.  233;  52  Am.  Rep.  662;  Pennoyer  v.  Neff,  95  U.  S.  714,  723; 
Cooper  V.  Reynolds,  10  Wal.  308;  Williams  v.  Welton,  28  Ohio  St.  451, 
467;  1  Black  on  Judg.,  sec.  229,  231 ;  Winfree  v.  Bagley,  102  N.  C.  515:  9 
S.  W.  Rep.  198 ;  Lydiard  v.  Chute,  45  Minn.  277;  47  N.  W.  Rep.  967. 

In  Quarl  v.  Abbett,  102  Ind.  237,  52  Am.  Rep.  662,  the  court  said: 
"  It  is  a  general  principle  that  the  process  of  the  courts  may  reach  and 
seize  property  within  their  jurisdiction.  A  man  who  brings  property 
within  the  territorial  jurisdiction  of  a  state  subjects  it  to  the  laws  of 


I 


CONSTRUCTIVE  SERVICE  OF  PROCESS.         269 

defendants,  liable  on  the  same  written  instrument,  has 
property  within  the  state,  gives  no  right  to  proceed  by 
publication   against  the   other  defendant  who   has   not.^ 

that  state.  '  If  a  foreigner  or  citizen  of  another  state,'  says  an  able 
rourt,  'send  his  property  within  a  jurisdiction  different  from  that' 
where  he  resides,  he  impliedly  submits  it  to  the  rules  and  regulations 
in  force  in  the  country  where  he  places  it.  What  the  law  protects,  it 
has  the  right  to  regulate.'  Clark  v.  Tarbell,  58  N.  H.  88.  This  general 
doctrine  has  been  declared  by  other  courts,  among  them  our  own. 
Ames  Iron  Works  v.  Warren,  76  Ind.  512 ;  Green  v.  Van  Buskirk,  7 
W^all.  139 ;  Rice  v.  Courtis,  32  Vt.  460.  It  is  upon  this  general  principle 
that  our  statutory  provisions  relative  to  notice  by  publication  are 
founded.  If  property  of  a  non-resident  can  not  be  reached  by  legal 
process  upon  constructive  notice,  then  our  statutes  were  passed  in  vain 
and  are  mere  empty  legislative  declarations,  without  either  force  or 
meaning ;  for,  if  the  person  is  not  within  the  jurisdiction  of  the  court, 
no  personal  judgment  can  be  rendered,  and  if  the  judgment  can  not 
operate  upon  the  property,  then  no  elTective  judgment  at  all  can  be 
rendered,  so  that  the  result  would  be  that  the  court  would  be  powerless 
to  assist  a  citizen  against  a  non-resident.  Such  a  result  would  be  a  de- 
plorable one.  If  the  rule  were  that  which  appellant's  argument  asserts, 
a  citizen  with  a  chattel  mortgage  could  not  enforce  it  on  property  within 
our  borders  against  a  non-resident,  nor  could  a  creditor  enforce  a  claim 
against  a  man  who  had  fled  to  Canada  and  made  it  his  residence,  al- 
though he  had  abundance  of  property  within  the  state.  Nor,  if  the 
rule  were  as  asserted,  could  property  of  non-resident  corporations 
■within  our  limits  be  reached.  But  the  rule  is  not  as  contended  for ; 
property  within  our  jurisdiction  may  be  seized  upon  process  issued 
upon  constructive  notice.  This  has  been  often  decided  with  respect  to 
attachment  proceedings.  Judge  Story  says :  '  Sometimes  the  seizure  or 
attachment  is  purely  nominal,  as,  for  example,  of  a  chip,  or  a  cane,  or  a 
hat.  In  other  cases  the  seizure  or  attachment  is  bona  fide  of  real  prop- 
erty or  personal  property  within  the  territory,  or  of  debts  due  to  the 
non-resident  persons  in  the  hands  of  their  debtors  who  live  within  the 
country.  In  such  cases,  for  all  the  purposes  of  the  suit,  the  existence 
of  the  property  so  seized  or  attached  within  the  territory  constitutes  a 
just  ground  of  proceeding  to  enforce  the  rights  of  the  plaintiff  to  the 
extent  of  subjecting  such  property  to  execution  upon  the  decree  or 
judgment.'  Story  Conf.  Laws,  sec.  549.  Wharton  says:  '  But  when  the 
thing  is  situate  within  the  jurisdiction  of  the  court,  then  proceedings 
in  rem.  give  a  title  to  it  against  all  the  world.'  Wharton  Conf.  Law,  sec. 
829.  He  applies  this  doctrine  to  the  seizure  of  goods  under  a  writ  of  at- 
tachment, and  cites  Ewer  v.  Coffin,  1  Cush.  23 ;  Phelps  v.  Holker,  1  Dall. 
261;  Pawling  v.  Bird,  13  Johns.  192;  Arndt  v.  Arndt,  15  Ohio,  33; 
McVicker  v.  Beedy,  31  Maine,  314;  Bissell  v.  Briggs,  9  Mass.  462." 

1  Farmers,  etc.,  Bank  v.  Bank  of  Allen  Co.,  88  Tenn.  279;  12  S.  W. 
Rep.  545. 


270  MEANS    OF    ACQUIRING    JURISDICTION. 

But  it  must  be  remembered  that,  as  a  general  rule,  in  this 
class  of  cases,  depending  upon  the  existence  of  property 
within  the  jurisdiction  of  the  court,  it  is  the  seizure  of  the 
property  that  gives  jurisdiction  over  it,  and  not  construc- 
tive notice  to  the  owners  alone.  Both  seizure  of  the 
property  and  notice  are  necessary.' 

Publication  is  also  allowed  where  the  action  is  to  enforce 
some  instrument  giving  a  specific  lien  upon  property  within 
the  jurisdiction  of  the  court,  as  in  case  of  a  mortgage 
either  upon  real  or  personal  property.^  Or  where  the  pro- 
ceeding is  one  afiecting  the  title  to  real  estate  and  is  au- 
thorized to  be  brought  where  the  land  is  situated.^  Actions 
to  set  aside  fraudulent  conveyances  of  real  estate  are  held 
to  belong  to  this  class.*  And  actions  to  quiet  the  title  to 
real  estate.^  And  to  abate  a  nuisance,  consisting  of  real 
estate  or  the  use  of  it.®  And  to  establish  a  trust  in  real 
estate.^  And  a  bill  to  remove  a  cloud  from  the  title  to 
real  estate.^  But  in  all  of  these  cases,  where  the  jurisdic- 
tion of  the  court,  whether  legal  or  equitable,  depends 
upon  the  presence  of  property  within  the  territorial  juris- 
diction, the  powers  of  the  court  are  confined  to  the  prop- 
erty, and  a  personal  judgment  can  not  be  rendered  on 
constructive  notice.^  So,  constructive  service  may  be  had 
in  cases  affecting  the  status  of  the  parties  to  the  action,  as 
in  cases  of  divorce,  in  which  cases,  and  others  of  a  kindred 
nature,  a  personal  judgment,  as,  for  example,  for  alimony, 
can  not  be  rendered.'" 

1  Ante,  sec.  14;  Cooper  v.  Reynolds,  10  Wal.  308. 

«  Crombie  v.  Little,  47  Minn.  581 ;  50  N.  W.  Rep.  823. 

3  Boswell  V.  Otis,  9  How.  336;  Adams  v.  Cowles,  95  Mo.  501 ;  8  S.  W. 
Rep.  711. 

*  Adams  v.  Cowles,  95  Mo.  501 ;  8  S.  W.  Rep.  711 ;  Chicago,  etc..  Bridge 
Co.  V.  Anglo-American  Packing,  etc.,  Co.,  46  Fed.  Rep.  584;  McLaughlin 
V.  McCrory,  55  Ark.  442;  18  S.  W.  Rep.  762. 

5  Dillon  V.  Heller,  39  Kan.  599 ;  18  Pac.  Rep.  693. 

«  Radford  v.  Thornell,  81  la.  709 ;  45  N.  W.  Rep.  890. 

'  Porter  Land  and  Water  Co.  v.  Baskin,  43  Fed.  Rep.  323 ;  Chicago, 
etc..  Bridge  Co.  v.  Anglo-American  Packing,  etc.,  Co.,  46  Fed.  Rep.  584. 

»  Morris  v.  Graham,  51  Fed.  Rep.  53.         ^  Boswell  v.  Otis,  9  How.  336. 

^0  Ante,  sec.  13;  Blackinton  v.  Blackinton,  141  Mass.  432;  5  N.  E.  Rep. 
830 ;  In  re  Newman,  75  Cal.  213 ;  16  Pac.  Rep.  887. 


CONSTRUCTIVE    SERVICE    OF    PROCESS.  271 

Independent  of  statutory  authority,  courts  of  equity,  as 
well  as  common  law  courts,  are  without  power  to  direct 
service  upon  defendants  beyond  their  territorial  jurisdic- 
tion.^ Courts  of  equity  have  assumed  the  power  to  order 
service  to  be  made  within  their  jurisdiction  upon  some- 
person  for  the  absent  defendant.^  But  this  power  has 
been  confined  to  bills  other  than  original  bills  and  other 
proceedings  which  are  continuations  of  a  suit  in  which 
the  court  has  already  obtained  jurisdiction.^  Besides,  the 
statute  of  the  United  States  now  provides  in  what  cases 
constructive  service  may  be  had  upon  non-residents  and 
the  manner  of  making  such  service,  and  this  statute  must 
be  held  to  limit  and  dehne  the  powers  of  the  federal  courts 
in  this  respect.* 

b.  The  affidavit. — In  order  to  entitle  a  party  to  resort  to 
constructive  notice  as  a  means  of  bringing  a  defendant,  or 
his  propert}^,  within  the  jurisdiction  of  the  court,  he  must 
show  by  affidavit  that  the  cause  is  one  in  which  construct- 
ive service  is  allowed.  And  this  must  be  done  by  showing 
that  the  defendant  is  a  non-resident  or  can  not  after  due 
diligence  be  found  within  the  state,  and  that  some  one  or 
more  of  the  statutory  grounds  for  making  publication 
exists.^  Or  must  show  some  ground  upon  which,  under 
the  statute,  a  resident  defendant  may  be  proceeded  against 
by  publication.^ 

The  making  of  the  affidavit  is  a  jurisdictional  step  in 
the  case,  and  a  substantial  compliance  with  the  statute 
is  necessary  to  give  the  court  jurisdiction.''     But  an  affi- 

»  Batt  V.  Procter,  45  Fed.  Rep.  515,  516. 
'^  Foster's  Fed.  Prac,  p.  155,  sec.  96. 

^  Foster's  Fed.  Prac,  p.  155,  sec.  96 ;  Pacific  R.  Co.  v.  Mo.  Pac.  Ry.  Co., 
3  Fed.  Rep.  772. 

*  Pacific  R.  Co.,  V.  Mo.  Pac.  Ry.  Co.,  3  Fed.  Rep.  772;  Batt  r.  Procter, 
45  Fed.  Rep.  515  ;  Foster's  Fed.  Prac,  p.  157,  sec.  97. 

*  Ligare  v.  California  S.  R.  R.  Co.,  76  Cal.  610  ;  18  Pac.  Rep.  777  ;  Bryan 
t).  University  Pub.  Co.,  112  N.  Y.  382;  19  N.  E.  Rep.  825;  Landrue  v. 
Lund,  38  Minn.  538;  38  N.  W.  Rep.  699;  Forbes  v.  Hyde,  31  Cal.  342, 
353  ;  Slocum  v.  Slocum,  17  Wis.  150  ;  Batt  v.  Procter,  45  Fed.  Rep.  515. 

®  Frisk  V.  Reigelman,  75  Wis.  499  ;  44  N.  W\  Rep.  766. 
'  Atkins  I:  Atkins,  9  Neb.  200  ;  2  N^  W.  Rep.  466  ;  Shields  v.  Miller,  9 
Kan.  390 ;  Chase  r.  Kaynor,  78  la.  449 ;  43  N.  W.  Rep.  269. 


272  MEANS    OF    ACQUIRING   JURISDICTION. 

davit  may  be  sufficient  to  give  the  court  jurisdiction  and 
yet  be  held  insufficient  to  withstand  a  direct  attack.  If 
there  is  an  entire  want  of  a  necessary  allegation  in  the 
affidavit  a  judgment  rendered  thereunder  will  be  void. 
If  the  allegation  is  not  omitted,  but  is  imperfectly  made, 
the  judgment  will  not  be  void,  but  merely  voidable.* 

It  is  not  always  required  that  the  affidavit  shall  state 
all  the  facts  necessary  to  render  a  judgment,  when  recov- 
ered, effectual.  For  example,  in  order  to  render  a  judg- 
ment effectual  in  a  personal  action,  the  defendant  must 
have  property  within  the  state.  But  unless  the  statute 
requires  it  the  affidavit  need  not  show  the  fact.^ 

It  must  be  remembered,  however,  that  such  a  judgment 
is  void,  as  a  personal  judgment,  and  unless  property  of 
the  defendant  is  attached  in  the  action,  or  otherwise 
brought  under  subjection  to  the  judgment  when  rendered, 
the  same  is  of  no  effect.^  And  while  such  a  showing  is 
not  necessary  in  some  of  the  states  it  is  so  in  others,  sim- 
ply because  the  statute  makes  it  so.  Therefore  when  it 
is  said  that  an  affidavit  showing  that  the  case  is  one  in  which 
publication  may  be  made  is  necessary,  it  must  be  taken  with 
the  qualification  that  the  statute  authorizing  publication 
may  require  less  or  require  no  showing  at  all  by  affidavit. 
It  is  a  matter  of  statutory  regulation  entirely.  But  the 
effect  of  allowing  judgment  to  be  taken  without  such 
showing,  or  where  the  fact  authorizing  publication  does 
not  exist,  is  quite  another  thing.  The  only  test  as  to 
what  the  affidavit  must  contain  is  the  statute.  Whether 
the  judgment  rendered  upon  the  publication  is  valid  or 
invalid  may  depend  upon  the  statute  being  complied  with, 
but  not  necessarily  so.  The  affidavit  and  every  other  step 
in  the  proceeding  may  be  made  and  taken  in  strict  con- 
formity to  the  statute,  and  yet  the  judgment  be  void  be- 

1  Atkins  V.  Atkins,  9  Neb.  200 ;  2  N.  W.  Rep.  466 ;  Forbes  v.  Hyde,  31 
Cal.  342,  349;  Britton  v.  Larson,  23  Neb.  806;  37  N.  W.  Rep.  681  ;  Pen- 
noyer  v.  Neflf,  95  U.  8.  714,  721. 

^  Anderson  v.  Goflf,  72  Cal.  68 ;  13  Pac.  Rep.  73  ;  Carnes  v.  Mitchell,  82 
la.  601;  48  N.  W.  Rep.  941. 

3  Anderson  v.  Goflf,  72  Cal.  68;  13  Pac.  Rep.  73. 


CONSTRUCTIVE    SERVICE    OF    PROCESS.  273 

cause  the  case  is  one  in  which  a  judgment  can  not  legally 
be  had  upon  constructive  service.^ 

If  the  affidavit  is  not  required  by  the  statute  to  state 
the  fact  of  non-residence  it  need  not  be  stated  therein,  but 
may  be  established  by  other  evidence.^  But  it  does  nof 
follow  that  a  judgment  against  one  who  is  not  a  non- 
resident would  be  valid  because  an  affidavit  conforming 
to  the  statute  has  been  filed.  The  fact  of  non -residence 
may  still  be  a  jurisdictional  fact  that  must  be  established 
to  give  the  court  authority  to  act.^  And  some  of  the 
cases  go  further,  and  hold  that  under  such  a  statute  this 
jurisdictional  fact  need  not  be  proved  at  all,  in  the  case 
in  which  the  judgment  was  rendered,  if  it  in  fact  existed. 
The  judgment  may  be  upheld,  when  attacked,  by  then 
proving  the  fact  of  non-residence.* 

It  must  be  borne  in  mind,  however,  that  it  is  so  held 
solely  because  the  statute  does  not  require  that  the  affidavit 
shall  allege  the  fact  of  non-residence.  If  it  were  required 
by  the  statute  to  be  stated  in  the  affidavit,  the  allegation 
could  not  be  dispensed  with  and  the  defect  could  not  be 
supplied  by  other  evidence  however  convincing.^  The 
filing  of  such  an  affidavit  as  the  statute  requires  is  a  con- 
dition precedent  to  an  authorized  publication.  Without 
it  a  judgment  rendered  on  such  notice  is  void,  and  the 
making  of  such  an  affidavit,  after  the  publication,  is  of 
no  effect.^ 

As  this  mode  of  conferring  jurisdiction  is  purely  stat- 
utory whatever  the  statute  requires  can  not  be  dispensed 
with.''     But   it  has  been  held  that  the  affidavit  is  not  a 

^Ante,  sees.  13,  32,  33  ;  Taylor  v.  Ormsby,  66  la.  110;  23  N.  W.  Rep.  288  ; 
Sweeley  v.  Van  Steenburg,  69  la.  697 ;  26  N.  W.  Rep.  78. 

2  Taylor  v.  Ormsby,  66  la.  110 ;  23  N.  W.  Rep.  288  ;  Carnes  v.  Mitchell, 
82  la.  601  ;  48  N.  W.  Rep.  941. 

'  Taylor  r.  Ormsby,  66  la.  110;  23  N.  W.  Rep.  288;  Sweeley  r.  Van 
Steenburg,  69  la.  697  ;  26  X.  W.  Rep.  78. 

*  Sweeley  v.  Van  Steenburg,  69  la.  697  ;  26  N.  W.  Rep.  78. 

*  Carnes  v.  Mitchell,  82  la.  601 ;  48  N.  W.  Rep.  941. 

^  Barber  v.  Morris,  37  Minn.  194  ;  33  N.  W.  Rep.  559. 
'  Barber  v.  Morris,  37  Minn.  194  ;  33  N.  W.  Rep.  5-59;  Anderson  v.  Co- 
18 


274  MEANS   OF   ACQUIRING   JURISDICTION. 

part  of  the  judgment  roll,  and  that  it  will  be  presumed  in 
aid  of  the  jurisdiction  of  the  court  that  such  affidavit  was 
made  and  that  an  affidavit  of  publication  and  a  recital 
thereof  in  the  record  are  conclusive.^ 

Under  most  of  the  statutes  it  is  not  enough  to  show  that 
the  party  is  a  non-resident.  It  must  appear,  in  addition, 
that  the  cause  of  action  is  such  that  constructive  service 
of  notice  is  proper.^  And  in  some  of  the  cases  it  is  held 
that  such  a  cause  of  action  must  be  shown  by  a  verified 
complaint.^  This,  however,  is  based  upon  an  express  stat- 
utory provision  requiring  the  complaint  to  show  a  suffi- 
cient cause  of  action.  Under  a  statute  requiring  the  ap- 
plication for  the  order  to  be  based  upon  the  complaint, 
duly  verified  and  filed,  the  complaint  must  be  on  file  at 
the  time  the  order  is  made.*  And  must  show  the  cause  of 
action  to  be  one  upon  which  publication  is  authorized.^ 

In  some  of  the  states  the  facts  authorizing  the  service 
by  publication,  including  the  nature  of  the  cause  of  action, 
must  appear  by  affidavit.  But  even  where  this  is  the 
case,  if  the  complaint  is  verified,  it  may  be  referred  to  in 
the  affidavit  for  the  necessary  facts  as  to  the  cause  of  ac- 
tion. And  in  some  of  the  states  where  a  verified  com- 
plaint, together  with  the  affidavit,  is  required  to  be  made 
the  basis  of  the  application,  the  cause  of  action  need  not 
be  shown  by  the  affidavit,  but  the  court  may  look  to  the 
complaint  to  ascertain  whether  a  cause  of  action  appears 
or  not.^  But  if  the  complaint  is  not  verified,  the  affidavit 
must  state  the  facts  showing  a  cause  of  action  against  the 
defendant.  It  is  not  enough  to  state,  in  the  language  of 
the  statute,  that  the  plaintiff  has  a  good  cause  of  action 

burn,  27  Wis.  562 ;  Cummings  v.  Tabor,  61  Wis.  185,  189 ;  21  N.  W. 
Eep.  72. 

1  In  re  Newman,  75  Cal.  213,  220 ;  16  Pac.  Rep.  887  ;  ante,  sec.  23,  p. 
142  ;  Hardy  v.  Beaty,  19  S.  W.  Rep.  778. 

2  Crouch  V.  Martin,  47  Kan.  313  ;  27  Pac.  Rep.  985. 

»  Bryan  v.  University  Pub.  Co.,  112  N.  Y.  382 ;  19  N.  E.  Rep.  825. 
4  Cummings  v.  Tabor,  61  Wis.  185,  189;  21  N.  W.  Rep.  72. 
=  Cummings  v.  Tabor,  61  Wis.  185,  188 ;  21  N.  W.  Rep.  72 ;  County  of 
Yolo  V.  Knight,  70  Cal.  431 ;  11  Pac.  Rep.  662. 


I 


CONSTRUCTIVE  SERVICE  OF  PROCESS.         275 

against  him.^  The  same  rule  applies  to  the  allegation  that 
the  party  against  whom  publication  is  sought  is  a  neces- 
sary party  to  the  action.^  But  this  clause  of  the  statute 
is  liberally  construed  in  favor  of  jurisdiction,  and  an  im- 
perfect and  very  general  statement  of  the  cause  of  action 
is  held  to  be  sufficient  to  uphold  the  judgment  upon  a  col- 
lateral attack.^  It  is  not  always  sufficient  in  making  the 
showing  of  facts  required  to  follow  the  language  of  the 
statute.*  In  most  of  the  states,  in  order  to  justify  the 
giving  of  notice  by  publication,  it  must  appear  by  the  af- 
fidavit that  the  defendant  is  a  non-resident,  or  that  he  can 
not,  after  due  diligence,  be  found  within  the  state.  And 
it  is  not  sufficient  to  state  generally  that  he  can  not,  after 
due  diligence,  be  found.  The  facts  showing  what  was 
done  in  the  effort  to  ascertain  the  defendant's  where- 
abouts must  be  stated  so  that  the  court  may  determine 
whether  the  acts  done  constitute  due  diligence  or  not.^  If, 
however,  any  facts  are  stated  tending  to  show  that  due 
diligence  was  used,  this  gives  the  court  jurisdiction  to  de- 
termine whether  such  facts  are  sufficient  or  not.  And  if 
the  court  holds  them  to  be  sufficient,  however  erroneous 
the  ruling  may  be,  a  judgment  founded  upon  the  notice 
given  under  it  is  not  void,  and  can  not  be  impeached  col- 
laterally.® And  the  statement  of  a  fact  inferentially  and 
insufficiently,  will  not  render  the  judgment  void,  but  void- 
able only.^     What  is  necessary  to  constitute  due  diligence 

'  County  of  Yolo  v.  Knight,  70  Cal.  431;  11  Pac.  Rep.  662;  Ricketson 
r.  Richardson,  26  Cal.  153 ;  Forbes  v.  Hyde,  31  Cal.  352 ;  Bacon  v.  John- 
son, 110  N.  C.  114 ;  14  S.  E.  Rep.  508. 

2  Id. 

3  Shippen  v.  Kimball,  47  Kan.  173 ;  27  Pac.  Rep.  813. 

*  Ligare  v.  California  S.  R.  R.  Co.,  76  Cal.  610 ;  18  Pac.  Rep.  777 ; 
County  of  Yolo  v.  Knight,  70  Cal.  431 ;  11  Pac.  Rep.  662. 

*  Ricketson  v.  Richardson,  26  Cal.  149,  153 ;  Ligare  v.  California  S.  R. 
R.  Co.,  76  Cal.  610;  18  Pac.  Rep.  777;  Jewett  v.  Jewett,  2  N.  Y.  Sup. 
250;  Landrue  v.  Lund,  .38  Minn.  538;  38  N.  W.  Rep.  699;  McDonald  v. 
Cooper,  32  Fed.  Rep.  745;  Alderson  v.  Marshall,  7  Mont.  288;  16  Pac. 
Rep.  576 ;  Beach  v.  Beach,  6  Dak.  371 ;  43  N.  W.  Rep.  701 ;  McCracken 
V.  Flanagan,  127  N.  Y.  493 ;  28  N.  E.  Rep.  385. 

«  Belmont  v.  Cornen,  82  N.  Y.  256. 

'  Long  V.  Fife,  45  Kan.  271 ;  25  Pac.  Rep.  594. 


276  MEANS    OF    ACQUIRING   JURISDICTION. 

can  not  be  stated  with  any  definiteness.  Each  case  must 
necessarily  be  governed  by  its  own  facts  and  circum- 
stances. And  the  opinions  of  the  different  courts  on  the 
subject  are  so  much  dependent  upon  the  dift'erent  views 
of  individual  judges,  that  they  furnish  us  no  safe  guide. 
Where  it  is  made  necessary  by  statute  to  show  that  the 
defendant  has  property  within  the  state,  it  is  held  that  the 
statement  thereof  in  the  atfidavit  should  be  direct,  and 
specify  the  property.^  And  that  it  is  not  sufficient  to  state 
it  on  information  and  belief.^  This  may  be  so  as  to  the  al- 
legation of  property  within  the  state,  but  as  to  some  of  the 
facts  required  to  be  stated,  it  is  frequently  impossible  to 
state  them  in  any  other  way.  Therefore,  it  is  not  neces- 
sary that  such  matters  should  be  stated  positively.  They 
may  be  stated  on  information  and  belief.^  If  the  residence 
of  the  defendant  is  known  to  the  plaintiff,  it  must  be 
stated  where  a  copy  of  the  summons  or  notice  is  required 
to  be  sent  to  the  defendant,  or  if  the  place  of  residence  is 
unknown,  it  must  be  so  stated.^  In  some  cases  it  is  held 
that  if  the  affidavit  states  that  the  defendant  is  a  non-resi- 
dent, and  the  place  of  his  residence  is  given,  no  effort  to 
find  him  within  the  state  need  be  shown.^  But  the  state- 
ment that  the  defendant  is  out  of  the  state  must,  in  order 
to  avoid  the  necessity  of  alleging  diligence  to  find  him 
within  the  state,  be  direct  and  pogitive.^  And  in  other 
cases  it  is  held  that  the  mere  allegation  of  non-residence 
is  not  enough,  as  non-residence  is  not  inconsistent  with 
the  actual  presence  of  the  defendant  within  the  state.^ 
But  it  has  been  held  that  where  non-residence  is  alleged, 

1  McDonald  v.  Cooper,  32  Fed.  Rep.  745,  751 ;  Feikert  v.  Wilson,  38 
Minn.  341 ;  37  N.  W.  Eep.  585. 

2  Feikert  v.  Wilson,  38  Minn.  341 ;  37  N.  W.  Rep.  585. 

=*  Colton  V.  Rupert,  60  Mich.  318 ;  27  N.  W.  Rep.  520.     But  see  on  this 
point  Waggoner  v.  Fogelman,  13  S.  W.  Rep.  729. 

*  Ricketson  v.  Richardson,  26  Cal.  149,  154 ;  Fetes  r.  Volmer,  8  N.  Y. 
Sup.  294. 

*  Anderson  v.  Goff,  72  Cal.  68 ;  13  Pac.  Rep.  73 ;  McDonald  v.  Cooper, 
32  Fed.  Rep.  745,  748;  Furnish  v.  Mullan,  76  Cal.  646;  18  Pac.  Rep.  854. 

«  Carleton  v.  Carleton,  85  N.  Y.  313. 

'  Carleton  v.  Carleton,  85  N.  Y.  313;  Pike  v.  Kennedy,  15  Or.  420;  15 


i 


CONSTRUCTIVE  SERVICE  OF  PROCESS.         1  i  i 

and,  also,  that  the  "  defendants  can  not,  after  due  dili- 
gence, be  found  within  the  state,"  and  summons  can  not 
be  served  personally,  "  because  of  such  non-residence,"  the 
affidavit  is  sufficient.^  It  must  appear  from  the  affidavit 
either  that  due  diligence  has  been  used  to  find  the  defend"- 
ant  within  the  state,  or  that  an  effiDrt  to  find  him  would  be 
of  no  avail.^  Allegations  in  the  affidavit,  made  on  in- 
formation and  belief,  are  proper  to  be  considered.^  And 
the  return  of  the  proper  officer  made  on  a  summons  issued 
in  the  case,  tending  to  show  diligence  and  a  failure  to  find 
the  defendant,  may  be  made  part  of  the  affidavit  by  refer- 
ence to  it.^ 

In  most  of  the  statutes  it  is  required  that  the  affidavit 
shall  state  briefly  the  object  and  general  nature  of  the 
complaint  or  petition.  But  less  strictness  has  been  en- 
forced by  the  courts  under  this  clause  of  the  statute,  prob- 
ably, than  any  other.  A  very  general  statement  of  the 
nature  and  objects  of  the  action  has  been  held  to  be  suffi- 
cient.* 

As  a  rule,  the  affidavit  must  disclose  the  name  of  the 
party  against  whom  publication  is  asked,  and  the  order 
and  publication  must  run  in  his  name.  But  under  some 
of  the  statutes  defendants  may  be  proceeded  against  by 
publication  by  fictitious  names,  or  as  unknown,  upon  a 
showing  by  a  sworn  complaint  or  affidavit  that  the  name 
of  the  party  is  unknown,  and  can  not,  after  due  diligence, 
be  ascertained.  Under  such  a  statute,  it  is  not  sufficient 
to  show  that  the  unknown  defendant  is  a  non-resident. 
It  must  also  be  shown  that  the  name  of  such  defendant  is  un- 
known and  can  not  be  ascertained  upon  diligent  inquiry.* 

If  the  affidavit  falsely  states   that   the   plaintifi"  has  a 

Pac.  Rep.  637 ;  Fetes  v.  Volmer,  8  N.  Y.  Sup.  294 ;  McCracken  v.  Flan- 
nagan,  127  N.  Y.  493 ;  28  N.  E.  Rep.  385. 

'  Kennedy  v.  The  N.  Y.  L.  Ins.  &  Trust  Co.,  101  N.  Y.  487;  5  N.  E. 
Rep.  774 ;  Pike  v.  Kennedy,  15  Or.  420 ;  15  Pac.  Rep.  637. 

^  Pike  V.  Kennedy,  15  Or.  420 ;  15  Pac.  Rep.  637  ;  McDonald  v.  Cooper, 
32  Fed.  Rep.  745,  750. 

*  Howe  Machine  Co.  v.  Pettibone,  74  N.  Y.  68. 

*  Adams  v.  Cowles,  95  Mo.  501  ;  8  S.  W.  Rep.  711. 

*  Bleidom  v.  Pilot  Mountain  Coal,  etc.,  Co.,  15  S.  W.  Rep.  737. 


278  MEANS    OF   ACQUIRING   JURISDICTION.     . 

cause  of  action  when  he  has  not,  and  judgment  is  re- 
covered on  the  constructive  notice  given  under  it,  the 
judgment  will  be  set  aside  on  the  ground  that  it  was 
fraudulently  obtained,^  But  this  right  must  rest  upon  the 
doctrine  that  a  judgment  recovered  by  fraud  may  be  set 
aside,  and  not  on  the  ground  that  the  court  had  not  juris- 
diction to  render  it.  Such  a  doctrine  as  the  latter  would 
leave  it  open  for  any  one  to  attack  a  judgment  by  show- 
ing that  some  of  the  jurisdictional  facts'shown  by  the  affi- 
davit did  not  exist,  without  any  reference  to  any  intention 
of  the  party  making  the  affidavit  to  misstate  the  fact  or 
to  obtain  an  undue  advantage.  And  certainly  the  juris- 
diction of  the  court  could  not  be  attacked  collaterally  on 
any  such  ground.^ 

The  affidavit  of  non-residence  must  relate  to  the  time 
of  the  order  for  publication,  and  must  be  made  at  or  near 
the  time  the  order  is  made.''  But  it  is  sufficient  if  made 
so  near  the  time  as  to  render  it  reasonably  certain  that  no 
change  could  have  taken  place  affecting  the  right  to  have 
such  publication.* 

It  is  not  necessary  that  the  affidavit  be  made  at  the  time 
of  the  filing  of  the  complaint  or  petition,  or  that  the  aver- 
ment of  non-residence  shall  relate  to  that  time.^ 

In  some  cases  the  statute  provides  for  the  filing  of  the 
complaint  or  declaration  after  proof  of  publication  is 
made.  In  such  cases  it  is  held  that  if  the  complaint  is 
filed  before  the  affidavit  of  publication  is  made,  a  judg- 
ment rendered  thereon  is  void.^  In  others,  the  affidavit 
can  not  legally  be  made  until  after  the  complaint  is  filed. 
But  the  date  appearing  in  or  upon  the  order  is  not  con- 
clusive as  to  the  time,  and  it  may  be  corrected  to  conform 

1  Dunlap  V.  Steere,  92  Cal.  344 ;  28  Pac.  Rep.  563. 

'  Lawson  v.  Moorman,  85  Va.  880;  9  S.  E.  Rep.  150. 

^  Forbes  v.  Hyde,  31  Cal.  342,  351 ;  People  v.  Huber,  20  Cal.  81 ;  Crom- 
bie  V.  Little,  47  Minn.  581 ;  50  N.  W.  Rep.  823. 

*  Crombie  v.  Little,  47  Minn.  581 ;  50  N.  W.  Rep.  823 ;  Cornwall  v. 
Falls  City  Bank,  18  S.  W.  Rep.  452. 

^  Bogle  V.  Gordon,  39  Kan.  31 ;  17  Pac.  Rep.  857. 

^  Nugent  V.  Nugent,  70  Mich.  52 ;  37  N.  W.  Rep.  706;  Steere  v.  Vander- 
berg,  67  Mich.  530;  35  N.  W.  Rep.  110. 


I 


CONSTRUCTIVE    SERVICE    OF    PROCESS.  279 

to  the  facts,  or  it  may  be  shown  that  it  was  in  fact  filed 
at  the  proper  time  to  give  the  court  jurisdiction.^ 

A  misnomer  of  either  the  plaintifi'  or  defendant  in  the 
affidavit  renders  a  judgment  under  it  void  where  there  is 
no  appearance.^ 

Where  an  affidavit  is  defective,  but  not  void,  it  is  held 
in  some  of  the  cases  that  it  may  be  amended  after  judg- 
ment, for  example,  by  making  an  affidavit  on  information 
and  belief  positive.^  Or  by  changing  an  inferential  or  in- 
sufficient statement  of  a  fact  to  a  direct  and  positive  state- 
ment.* But  no  amendment  could  be  allowed  by  the  addi- 
tion of  a  material  allegation  entirely  omitted  from  the 
affidavit,  because  such  an  affidavit  would,  as  we  have  seen, 
be  absolutely  void,  the  court  would  have  no  jurisdiction, 
and  the  judgment  would  be  void.  Jurisdiction  can  not 
be  conferred  after  an  act  is  done,  and  thus  breathe  life 
into  a  void  judgment. 

That  to  serve  process  personally  would  be  difficult  and 
expensive,  is  no  ground  for  publication  even  under  a  stat- 
ute authorizing  constructive  service  where  personal  service 
is  "impracticable."^ 

Except  in  those  states  in  which  a  cause  of  action  au- 
thorizing constructive  service  must  be  shown  by  the  com- 
plaint, the  affidavit  is  the  sole  basis  of  the  publication,  or 
the  order  therefor,  and  the  insufficiency  of  the  complaint 
is  no  ground  for  setting  aside  notice.** 

c.  Officers  return  as  basis  for  jniblication.  Sometimes  the 
facts,  or  a  part  of  them,  necessary  to  authorize  construct- 
ive service  of  process  may,  or  must,  under  statutory  pro- 
visions, be  shown  by  the  return  of  the  proper  officer  on 
the  summons  or  citation.  If  so,  the  return  of  the  officer 
takes  the  place  of  the  affidavit,  to  that  extent,  and  must 
bring  the  case  within  the  statute  in  order  to  justify  the 

1  Voelz  V.  Voelz,  80  Wis.  504 ;  50  N.  W.  Rep.  398. 

*  Newman  v.  Bowers,  72  la.  465 ;  34  N.  W.  Rep.  212. 

*  Harrison  v.  Beard,  30  Kan.  532 ;  2  Pac.  Rep.  632. 

*  Long  r.  Fife,  45  Kan.  271 ;  25  Pac.  Rep.  594. 

*  Batt  V.  Procter,  45  Fed.  Rep.  515. 

fi  Mehrhoff  v.  Diffenbacker,  31  N.  E.  Rep.  41. 


280  MEANS    OF    ACQUIIlING    JURISDICTION. 

publication  of  the  summons,  and  thereby  give  the  court 
jurisdiction.' 

d.  The  order  for  publication. — The  order  for  publication 
must  conform  to  the  statute  and  require  everyact  to  be 
done  that  is  necessary  to  constitute  a  sufficient  notice  by 
publication.^  If  the  statute  requires  the  summons  to  be 
mailed  to  the  defendant  as  well  as  published,  the  order 
must  direct  such  mailing  or  the  judgment  will  be  void.^ 
And  usually  it  is  required  to  recite  the  facts  contained  in 
the  affidavit  as  a  basis  for  the  order.*  The  order  is  the 
authority  for  making  the  service,  whatever  it  may  be,  and 
if  it  provides  for  a  service  not  authorized,  the  fact  that  a 
proper  service,  not  called  for  by  the  order  for  publication, 
is  actually  made,  can  not  cure  the  defect."^ 

In  some  of  the  states,  it  is  required  by  the  statute  that 
the  order  shall  require  the  defendant  to  appear  on  a  day 
named,  for  example,  on  the  first  day  of  the  next  term  of 
the  court.  And  under  such  a  statute,  it  is  held  that  an 
order  requiring  an  appearance  at  an  earlier  day  is  void 
and  notice  in  conformity  thereto  gives  no  jurisdiction.'' 
But  in  most  of  the  states  a  specific  day  for  the  appearance 
is  not  required  to  be  fixed,  but  the  defendant  must  appear 
and  answer  within  a  certain  number  of  days  after  publica- 
tion. Under  such  statutes,  it  has  been  held  that  a  judg- 
ment rendered  upon  default  before  the  expiration  of  the 
time  within  which  the  defendant  is  required  to  answer  is 
not  void  but  erroneous  merely  and  can  not  be  attacked 
collaterally.^  And  in  some  proceedings  the  filing  of  the 
petition  is  held  to  give  the  court  jurisdiction,  and  in  such 

1  Eliot  r.  McCormick,  14-4  Mass.  10 ;  10  N.  E.  Rep.  709  ;  Guaranty  Trust, 
etc.,  Co.  V.  Buddington,  27  Fla.  215;  9  Sou.  Rep.  251. 

^  Ricketson  v.  Richardson,  26  Cal.  149,  153 ;  Park  v.  Higbee,  24  Pac. 
Rep.  524 ;  Fetes  v.  Volmer,  8  N.  Y.  Sup.  294. 

3  Park  V.  Higbee,  24  Pac.  Rep.  524 ;  Fetes  v.  Volmer,  8  N.  Y.  Sup.  294 ; 
Beaupre  v.  Keefe,  79  Wis.  436;  48  N.  W.  Rep.  596. 

*  Ricketson  v.  Richardson,  26  Cal.  149,  153. 

s  Beaupre  v.  Keefe,  79  Wis.  436;  48  N.  W.  Rep.  596. 

^  Payne's  Adm'r  v.  Hardesty,  14  S.  W".  Rep.  348 ;  Brownfield  v.  Dyer,  7 
Bush,  505  ;  Bird  v.  Norquist,  46  Minn.  318  ;  48  N.  W.  Rep.  1132. 

'  In  re  Newman,  75  Cal.  213  ;  16  Pac.  Rep.  887. 


CONSTRUCTIVE  SERVICE  OF  PROCESS.  281 

cases  the  giving  of  notice  for  too  short  a  time  does  not 
affect  such  jurisdiction  or  render  an  order  made  under  it 
void.^ 

"Where  the  statute  requires  that  the  publication  be 
made  in  a  paper  most  likely  to  give  notice  to  the  defend- 
ant, the  fact  that  it  is  such  a  paper  need  not  be  set  out  in 
the  order." 

Under  a  statute  requiring  an  order  for  publication,  or 
service  out  of  the  state,  at  the  option  of  the  plaintiff,  the 
order  need  not  be  in  the  alternative,  but  may  order  either 
kind  of  service.  The  plaintiff  should  exercise  his  option 
before  the  order  is  made,  and  if  he  does  not,  an  order  for 
either  kind  of  service  allowed  will  be  valid.^ 

Where  the  iixing  of  the  time  for  publishing  notice  is 
left  to  the  court,  an  order  fixing  such  time  will  be  upheld, 
even  in  case  of  a  direct  attack,  unless  injustice  appears  to 
have  been  done.^  And  such  an  order  will  render  a  judg- 
ment valid,  however  short  the  time  fixed  may  be,  as 
against  a  collateral  attack. 

e.  The  'publication: — As  to  what  the  publication  shall  be, 
the  statutes  of  the  several  states  differ.  In  some  a  publi- 
cation of  the  summons  is  required,  in  which  case  the  serv- 
ice is  the  same,  as  respects  the  form  of  the  notice,  as  per- 
sonal service.  In  other  states  a  notice  containing  the 
substance  of  the  summons,  or  a  citation,  is  required.  In 
either  case  the  requirements  of  the  statute  must  be  sub- 
stantially complied  with.  But  mere  irregularities  in  the 
form  of  the  notice,  or  the  publication  of  it,  while  they 
may  be  ground  for  setting  aside  the  service,  or  of  a  direct 
attack  upon  it  in  some  other  form,  will  not  render  it  void 
or  deprive  the  court  of  jurisdiction.^  In  some  cases,  how- 
ever, a  defect  in  the  service  that  would  be  a  mere  error  if 
the  summons  were  personally  served,  for  example,  in  case 

1  Mohr  V.  Manierre,  101  U.  S.  417. 
^  Calvert  v.  Calvert,  15  Colo.  390 ;  24  Pac.  Rep.  1043. 
'  In  re  Field,  131  N.  Y.  184 ;  30  N.  E.  Rep.  48. 
*  Osgood  V.  Osgood,  153  Mass.  38 ;  26  N.  E.  Rep.  413. 
^  Post,  sec.  40;  Webster  v.  Daniel,  14  S.  W.  Rep.  550;  Adams  v.  Cowles, 
95  Mo.  501 ;  8  S.  W.  Eep.  711 ;  1  Black  on  Judg.,  sec.  223. 


282  MEANS    OF   ACQUIRING   JURISDICTION. 

of  a  misnomer  of  the  defendant,  in  the  summons,  will  ren- 
der the  judgment  void  in  case  of  publication,^ 

The  question  whether  the  publication  of  the  notice,  or 
summons,  for  a  shorter  time  than  that  required  by  law,  is 
suificient  to  give  the  court  jurisdiction,  and  is  only  sub- 
ject to  a  direct  attack,  as  an  irregularity,  is  not  free  from 
doubt.  In  case  of  personal  service  of  summons,  it  is  well 
settled  that  a  service  for  too  short  a  time  before  judgment 
is  taken  is  a  mere  defect,  and  does  not  render  the  judg- 
ment void.^ 

There  is  no  good  reason  why  the  same  rule  should  not 
apply  in  case  of  a  publication  of  a  summons  regular  in  all 
other  respects.  And  it  has  been  held,  in  some  of  the 
cases,  that  a  judgment  rendered  under  such  circumstances 

1  Skelton  v.  Sackett,  91  Mo.  377  ;  3  S.  W.  Eep.  874 ;  Newman  v.  Bowers, 
72  la.  465  ;  34  N.  W.  Rep.  212. 

"  It  is  very  clear  from  the  above  case  that,  when  a  party  is  sued  by  a 
wrong  name,  and  service  of  the  writ  is  actually  made  on  the  person  in- 
tended, and  he  does  not  appear  and  plead  in  abatement,  that  the  judg- 
ment rendered  in  such  case  is  not  void.  But  a  distinction  exists  be- 
tween such  a  case  and  a  case  where  the  suit  is  against  a  non-resident, 
where  the  only  notice  is  by  publication  of  notice,  and  no  appearance  is 
made.  In  the  former  case,  where  there  is  a  mistake  in  the  name,  and 
the  writ  is  served  on  the  right  party,  he  is  thereby  informed  that  he  is 
the  person  meant;  and,  to  take  advantage  of  the  misnomer,  he  must 
appear  and  plead  the  misnomer  in  abatement. 

"  In  the  latter  case,  when  a  wrong  name  is  used  in  an  order  of  publi- 
cation, the  party  really  intended  receives  no  such  notice  that  he  is  the 
party  intended  as  one  who  is  personally  served  with  a  writ,  which  service 
designates  him  as  the  person  meant  to  be  sued.  While  the  service  of 
the  writ  in  the  former  case  is  a  demonstration  that  the  person  upon 
whom  it  is  served  is  the  person  intended  to  be  sued,  in  the  latter  case 
notice  by  publication  is  a  proceeding  against  the  name,  and,  to  give 
such  notice  as  the  service  of  a  writ  imparts,  it  should  be  correctly  set 
forth,  and,  if  it  is  not  so  set  forth,  it  is  ineffectual  as  a  notice.  It  would 
seem  that  an  order  of  publication  of  notice  against  J.  Smith  would  im- 
part the  same  notice  to  James,  Joseph,  John,  Jonathan,  or  Jackson 
Smith,  but  it  would  not  impart  to  anj'  one  of  them  notice  of  the  fact 
that  he  was  the  J.  Smith  intended  by  the  notice,  while  the  service  of  a 
writ  upon  any  one  of  them  would  inform  him  that  he  was  the  Smith 
intended.  These  views  seem  to  be  supported  by  the  cases  of  Gardner 
V.  State,  4  Ind.  632 ;  Entrekin  v.  Chambers,  11  Kan.  368 ;  Bray  v.  Mc- 
Clury,  55  Mo.  128."     Skelton  v.  Sackett,  91  Mo.  377 ;  3  S.  W.  Rep.  875. 

^  Ante,  sees.  13,  23;  Freeman  on  Judg.,  sec.  126;  Webster  v.  Daniel,  14 
S.  W.  Rep.  550. 


CONSTRUCTIVE    SERVICE    OF    PROCESS,  283 

is  not  void.^  But  there  are  cases  holdin^^  that  a  summons 
requiring  the  defendant  to  answer  within  a  shorter  time 
than  that  fixed  by  the  statute  is  void.^  And  it  must  be  re- 
membered that  in  certain  kinds  of  proceedings,  for  exam- 
ple, in  petitions  for  the  sale  of  property  by  a  guardian,  the- 
filing  of  the  petition  vests  the  court  with  jurisdiction,  and 
the  fact  that  the  notice  was  not  published  for  the  length  of 
time  required  will  not  render  the  proceedings  of  the  court 
void  as  to  the  ward.^  But  the  true  reason  for  distinguishing 
proceedings  of  this  kind  from  the  publication  of  a  summons 
in  an  ordinary  adversary  proceeding  is  that  the  proceeding 
is  not  adverse  to  the  ward."*  It  is  held,  however,  that  where 
a  return  day  is  fixed  in  the  summons,  and  the  day  named 
is  less  than  the  time  required,  after  the  publication  has  run 
its  time,  a  judgment  rendered  on  that  day  is  void.^ 

^  In  re  Newman,  75  Cal.  213 ;  16  Pac.  Eep.  887 ;  Davis  v.  Eobinson,  70 
Tex.  394 ;  7  S.  W.  Rep.  749,  753. 

2  Bell  V.  Good,  19  X.  Y.  Sup.  693. 

'  "  We  shall  assume,  however,  that  the  notice  was  not  published  for  the 
full  period  prescribed,  and  the  question  for  consideration  is  whether 
such  omission,  all  other  requisites  of  the  statute  having  been  complied 
with,  rendered  the  order  of  the  court  invalid  as  against  the  plaintiff, 
Mohr,  the  then  lunatic  ;  or,  in  other  words,  whether  such  publication 
was  essential  to  the  jurisdiction  of  the  court  to  grant  the  license  to  sell. 
The  supreme  court  of  the  state,  in  a  case  brought  by  this  plaintiff — 
Mohr  V.  Tulip — which  came  before  it  in  1876,  affecting  a  part  of  the 
premises  sold  at  the  same  guardian's  sale  upon  substantially  the  same 
proofs  here  presented,  held  that  the  sale  was  invalid  for  want  of  suffi- 
cient publication  of  such  notice.  On  the  other  hand,  the  Supreme  Court 
of  the  United  States,  in  considering  the  validity  of  a  sale  of  a  decedent's 
estate  under  a  statute  in  force  in  what  was  then  the  territory  of  "Wis- 
consin, requiring  the  county  court,  before  passing  upon  the  application 
for  a  license  to  sell,  to  order  notice  of  its  hearing  to  be  given  to  all  par- 
ties interested  who  did  not  signify  their  assent  to  the  sale,  had  held,  as 
far  back  as  1844,  after  deliberate  consideration,  that  the  absence  of  such 
notice  from  the  record,  or  the  fact  that  no  such  notice  was  given,  did 
not  affect  the  jurisdiction  of  the  court,  but  was  merely  a  matter  of  er- 
ror, to  be  corrected  by  an  appellate  tribunal ;  and  this  decision  has  been 
repeatedly  recognized  as  correctly  marking  the  distinction  between  mat- 
ters of  error  and  matters  of  jurisdiction  in  proceedings  for  the  sale  of 
such  estates.  Grignon's  Lessee  v.  Astor,  2  How.  319."  Mohr  v.  Ma- 
nierre,  101  U.  S.  420. 

♦  Scarf  V.  Aldrich,  32  Pac.  Rep.  324;  Gager  v.  Henry,  5  Sawyer  (U.  S. 
Cir.  Ct.^,  243;  :\Iohr  r.  Manierre,  101  U.  S.  420. 

^  Bird  V.  Norquist,  46  Minn.  318 ;  48  N.  AV.  Rep.  1132 ;  Guaranty  Trust, 


284  MEANS    OF    ACQUIRING   JURISDICTION. 

The  relief  demanded  in  the  petition,  and  of  which  no- 
tice is  given  in  the  publication,  limits  the  jurisdiction  of 
the  court  to  grant  relief,  where  there  is  no  appearance, 
and  no  other  can  be  given. ^ 

The  death  of  a  party  against  whom  publication  is  being 
made,  and  before  the  same  is  complete,  suspends  the  no- 
tice, as  well  as  the  action,  and  a  new  notice  must  be  given 
to  substituted  parties.^ 

Where  the  time  for  which  publication  shall  be  made  is 
measured,  in  the  statute,  by  months,  the  term  is  usually 
construed  to  mean  calendar  and  not  lunar  months,  in  this 
country,  although  the  opposite  construction  prevailed  in 
England  until  changed  by  statute.^ 

The  fact  that  one  of  the  necessary  publications  was 
made  on  a  legal  holiday  does  not  affect  the  validity  of  the 
judgment.* 

As  to  what  is  a  sufficient  length  of  time  for  the  pub- 
lication of  summons  or  notice,  see  the  authorities  cited 
below.^ 

/.  Proof  of  'publication. — The  validity  of  a  judgment  does 
not  depend  upon  the  proof  of  publication,  but  upon  the 
fact  that  the  proper  publication  has  been  made.®     There- 

etc,  Co.  V.  Buddington,  27  Fla.  215 ;  9  Sou.  Rep.  246 ;  Payne  v.  Hardesty, 
14  S.  W.  Rep.  348. 

1  Vorce  V.  Page,  28  Neb.  294;  44  N.  W.  Rep.  452  ;  Stuart  v.  Anderson, 
70  Tex.  588 ;  8  S.  W.  Rep.  295. 

2  Paget  V.  Pease,  2  N.  Y.  Sup.  335 ;  Reilly  v.  Hart,  8  N.  Y.  Sup.  717 ; 
Reilly  v.  Hart,  130  N.  Y.  625;  29  N.  E.  Rep.  1099. 

3  Guaranty  Trust,  etc.,  Co.  v.  Buddington,  27  Fla.  215 ;  9  Sou.  Rep. 
246;  Guaranty  Trust,  etc.,  Co.  v.  Green  Cove,  etc.,  R.  Co.,  139  U.  S.  137; 
11  Sup.  Ct.  Rep.  512,  515. 

*  Malmgren  v.  Pbinney,  52  N.  W.  Rep.  915. 

5  Davis  V.  Robinson,  70  Tex.  394 ;  7  S.  W.  Rep.  749;  Traylor  v.  Lide,  7 
S.  W.  Rep.  58;  Frisk  v.  Reigelman,  75  Wis.  499;  43  N.  W.  Rfep.  1117; 
Security  Co.  v.  Arbuckle,  123  Ind.  518;  24  N,  E.  Rep.  329;  Bleidorn  v. 
Pilot  Mountain  Coal,  etc.,  Co.,  89  Tenn.  166,  204;  15  S.  W.  Rep.  737 ;  In 
re  Kocb's  Will,  12  N.  Y.  Sup.  94;  Market  Nat.  Bank  v.  Pac.  Nat.  Bank, 
89  N.  Y.  397;  Guaranty  Trust,  etc.,  Co.  v.  Buddington,  27  Fla.  215;  9 
Sou.  Rep.  246;  Guaranty  Trust,  etc.,  Co.  v.  Green  Cove,  etc.,  R.  Co.,  139 
TJ.  S.  137;  11  Sup.  Ct.  Rep.  512;  State  v.  Georgia  Co.,  109  N.  C.  310;  13 
S.  E.  Rep.  861 ;  Cox  v.  Nortb  Wis.  Lum.  Co.,  51  N.  W.  Rep.  1130. 

6  In  re  Newman,  75  Cal.  213,  220 ;  7  Am.  St.  Rep.  146 ;  16  Pac.  Rep. 


CONSTRUCTIVE  SERVICE  OF  PROCESS.  285 

fore  ail  omission  to  make  the  formal  proof  may  be  supplied 
even  after  judgment.*  Or,  in  case  the  proof  can  not  be 
found,  it  will  be  presumed.^  And  the  proof  may  be 
amended  to  conform  to  the  facts  in  order  to  show  a  suffi- 
cient publication.^ 

The  failure  to  make  the  proof  in  the  prescribed  form  is 
a  mere  irregularity  and  does  not  render  the  judgment 
void.*  But  where  a  judgment  appears  on  its  face  to  be 
void,  the  right  to  supply  or  amend  the  proof  of  publica- 
tion so  as  to  show  it  to  be  valid  must  be  subject  to  inter- 
vening rights  of  third  parties  acquired  in  good  faith.^ 
And  it  must  be  remembered  that  in  some  of  the  cases  it  is 
held  that  the  facts  necessary  to  show  jurisdiction  must  af- 
firmatively appear  on  the  face  of  the  record  in  case  of 
publication  against  a  non-resident  defendant,  even  in  case 
of  a  collateral  attack,^  which  is  inconsistent  with  the  doc- 
trine that  the  necessary  facts  may  be  established  by  evi- 
dence dehors  the  record.  But  the  great  weight  of  author- 
ity is  certainly  the  other  way. 

The  affidavit  of  publication  is  usually  required  to  be 
made  by  some  specified  person,  for  example,  the  printer 
of  the  paper  in  which  the  publication  is  made.  But  as  it 
is  the  fact  of  publication,  and  not  the  proof  of  it,  that 
gives  jurisdiction,  there  can  be  no  valid  reason  why  proof 
of  the  fact  may  not  be  made  in  some  other  way.'^     And  in 

887;  Mason  v.  Messenger,  17  la.  263;  Sichler  v.  Look,  93  Cal.  600,  608; 
29  Pac.  Rep.  220;  Heinlen  v.  Heilbron,  94  Cal.  636,  641 ;  30  Pac.  Rep.  8 ;  In 
re  Schlee,  65  Mich.  362 ;  32  N.  W.  Rep.  717,  723 ;  Wilkinson  v.  Conaty, 
65  Mich.  614;  32  N.  W.  Rep.  841,  846 ;  Burr  v.  Seymour,  43  Minn.  401 ; 
45  N.  W.  Rep.  715  ;  Webster  v.  Daniel,  14  S.  W.  Rep.  550.' 

1  Britton  v.  Larson,  23  Neb.  806  ;  37  N.  W.  Rep.  681 ;  Wilkinson  v.  Co- 
naty, 65  Mich.  614 ;  32  N.  AV.  Rep.  841,  846 ;  Burr  v.  Seymour,  43  Minn. 
401 ;  45  N.  W.  Rep.  715. 

■^  Sichler  v.  Look,  93  Cal.  600,  608 ;  29  Pac.  Rep.  220. 

^  Hackett  v.  Lathrop,  36  Kan.  661 ;  14  Pac.  Rep.  220 ;  Frisk  v.  Reigel- 
man,  75  Wis.  499  ;  43  N.  W.  Rep.  1117. 

*  Webster  v.  Daniel,  14  S.  W.  Rep.  550,  552. 

*  Burr  V.  Seymour,  43  Minn.  401 ;  45  N.  W.  Rep.  715. 

*  Freeman  on  Judg.,  sec.  127 ;  Galpin  v.  Page,  18  Wall.  350;  Guaranty 
Trust,  etc.,  Co.  v.  Buddiugton,  27  Fla.  233;  9  Sou.  Rep.  251. 

'  In  re  Schlee,  65  Mich.  362  ;  32  N.  W.  Rep.  717,  723. 


286  MEANS   OF   ACQUIRING  JURISDICTION. 

some  of  the  statutes  the  right  to  prove  it  by  other  persons 
having  knowlege  of  the  fact  is  expressly  given.^ 

In  case  of  the  publication  of  a  warning  order,  or  other 
notice,  the  order  or  notice  takes  the  place  of  the  summons 
and  the  proof  of  publication  supplies  the  place  of  the  re- 
turn of  the  officer,  and  the  same  rule  as  to  their  legal 
effect  generally  applies.^ 

It  has  been  held  that  if  the  necessary  facts  appear  by 
way  of  recital,  and  not  by  direct  averment,  the  affidavit  is 
sufficient.^ 

Where  a  judgment  is  attacked  after  the  lapse  of  many 
years,  but  slight  evidence  of  the  facts  necessary  to  uphold 
it  will  be  held  to  be  sufficient  where  the  original  affidavits 
can  not  be  found  and  the  record  is  silent.* 

Recitals  in  the  record  showing  due  service  may,  in  the 
absence  of  any  thing  appearing  to  the  contrary,  supply 
the  place  of  actual  proof  of  publication.® 

g.  Personal  service  out  of  the  state. — As  we  have  seen, 
personal  service  out  of  the  state  is  authorized  in  some  of 
the  states,  but  such  service  is  only  allowed  where  con- 
structive service  against  a  non-resident  is  authorized  and 
upon  the  same  showing,  and  it  is  constructive  service 
only,  in  its  legal  effect.''  And  in  some  of  the  cases  it  is 
held  that  such  service  can  not  be  had  until  an  order  for 
publication  has  been  made.^  Usually  the  length  of  time 
after  service  within  which  to  answer  is  the  same  as  is  al- 
lowed after  publication  has  run  its  full  time.^ 

1  Taylor  v.  Coots,  32  Neb.  30 ;  48  N.  W.  Rep.  964. 

^  Webster  v.  Daniel,  14  8.  W.  Rep.  550. 

=>  Farmers  Nat.  Bank  v.  Fonda,  65  Mich.  533  ;  32  N.  W.  Rep.  664. 

*  Clyburn  v.  Reynolds,  31  S.  C.  91 ;  9  S.  E.  Rep.  973,  978. 

5  Ante,  sees.  22,  23;  Davis  v.  Robinson,  70  Tex.  394 ;  7  S.  W.  Rep.  749 ; 
Beattie  v.  Wilkinson,  36  Fed.  Rep.  646. 

«  Ante,  sees.  13,  15,  32 ;  1  Black  on  Judg.,  sec.  228  ;  Williams  v.  Welton, 
28  Ohio  St.  451 ;  Crouter  v.  Crouter,  17  N.  Y.  Sup.  758. 

'  McBlain  v.  McBlain,  77  Cal.  507 ;  McBlane  v.  McBlane,  20  Pac. 
Rep.  61. 

8  Market  Nat.  Bank  v.  Pacific  Nat.  Bank,  89  N.  Y.  397 ;  Crou^ter  v. 
Crouter,  17  N.  Y.  Sup.  758. 


i 


PROOF  OF  SERVICE  OF  PROCESS.  287 

39.  Proof  of  service  of  process.  Proof  of  service  of 
process  in  case  of  constructive  service  has  been  consid- 
ered.^ And  attention  has  been  given  to  the  subject  of 
the  service.^ 

It  remains  for  us  to  consider  how  the  service  is  to  be 
proved  after  it  has  been  made.  This  is  a  subject  of  much 
less  consequence  than  the  service  itself,  because  it  is  the 
latter  that  gives  jurisdiction,  and  the  proof  of  it,  if  de- 
fective, can  generally  be  amended  to  conform  to  the  facts.^ 

Usually,  as  we  have  seen  elsewhere,  the  duty  of  serving 
process  is  imposed  upon  some  officer,  by  statute,  who  is 
alone  authorized  to  serve  the  same.^  Sometimes  this  is 
provided  by  rules  of  court,  as  in  the  equity  rules  of  the 
federal  courts.*  And  the  power  to  appoint  some  one  to 
make  service,  when  the  officer  can  not  act,  is  usually  re- 
served to  the  courts.^ 

"Where  an  officer  is  required  to  serve  process,  the  proper 
proof  of  service  is  a  return  by  him.®  But  in  many  of  the 
states  authority  to  serve  original  process  is  given,  by  stat- 
ute, to  private  individuals  having  certain  specified  qualifi- 
cations.^ And  where  this  is  the  case  the  usual  and  proper 
mode  of  proving  the  service  is  by  the  affidavit  of  such  per- 
son. But  these  modes  of  proving  service  are  not  exclusive 
of  all  others  as  a  rule.  It  is  the  fact  of  service  that  is  the  ma- 
terial thing,  and  if  the  proof  can  not,  for  any  reason,  be  made 
in  the  mode  indicated,  there  is  no  reason  why  the  fact  may 
not  be  proved  by  other  evidence  satisfactory  to  the  court.'' 
But  it  is  held  in  some  of  the  cases  that  parol  proof  can 
not  be  heard  to  aid  the  officer's  return.^     And  this  is  un- 

*  Ante,  sec.  38.  ^  Ante,  sec  37. 

*  Ante,  sec.  38 ;  post,  sec.  40 ;  Heinlen  v.  Heilbron,  94  Cal.  636,  641 ;  30 
Pac.  Rep.  8. 

*  Martin  v.  Gray,  142  U.  S.  236 ;  12  Sup.  Ct.  Rep.  186 ;  Barton's  Suit  in 
Eq.  69. 

5  Ante,  sec.  37 ;  Martin  v.  Gray,  142  U.  S.  236;  12  Sup.  Ct.  Rep.  186. 

8  Fairfield  v.  Paine,  23  Me.  498 ;  41  Am.  Dec.  357 ;  Barton's  Suit  in 
Eq.  68. 

'  Ante,  sec.  38 ;  Perri  v.  Beaumont,  88  Cal.  108 ;  25  Pac.  Rep.  1109 ; 
Heinlen  v.  Heilbron,  94  Cal.  636,  641 ;  30  Pac.  Rep.  8. 

«  Botsford  r.  O'Conner,  57  111.  78;  Dickison  v.  Dickison,  124  111.  483; 
16  N.  E.  Rep.  861 ;  Fairfield  v.  Paine,  23  Me.  498 ;  41  Am.  Dec.  357. 


288  MEANS    OF    ACQUIRING    JURISDICTION. 

doubtedly  true  where  the  question  arises  on  appeal,  be- 
cause, in  such  case,  the  record  alone  can  be  looked  to  in 
determining  whether  jurisdiction  was  obtained  or  not.^ 

Whether  the  proof  is  made  by  an  officer's  return  or  by 
the  affidavit  of  a  private  individual,  the  facts  necessary  to 
show  a  valid  service  are  the  same.  And  the  facts  consti- 
tuting the  service  must  be  stated  so  that  the  court  may  de- 
termine whether  it  was  a  sufficient  service  or  not.  A  re- 
turn that  the  writ  was  served,  or  duly  served,  states  a 
mere  conclusion,  and  is  insufficient.^  But  it  has  been  held 
that  a  return  of  service  without  specifying  how  the  serv- 
ice was  made  imports,  and  will  be  construed  to  mean,  per- 
sonal service.' 

It  is  sometimes  required  that  the  affidavit  of  the  indi- 
vidual shall  show,  in  addition  to  the  facts  necessary  to 
prove  a  valid  service,  the  facts  showing  his  competency, 
under  the  statute,  to  make  the  service.*  But,  if  personal 
service  is  shown,  the  failure  to  state  facts  showing  the 
necessary  qualifications  of  the  party  is  an  irregularity, 
merely,  and  will  not  make  a  judgment  rendered  upon  it 
void.^  In  all  other  respects  the  oath  of  the  individual  is 
the  equivalent  of  the  return  of  the  officer.®  So  that  we 
may  safely  consider  the  requisites  of  the  two  modes  of 
service  together. 

Usually  it  is  sufficient  to  show  that  the  summons,  or 
other   writ,   was    served    on    the   defendant,    personally 
within   the    jurisdiction   of   the    court.^     In    the    federal 
courts  the  return  must  show  service  within  the  district 
over  which  the  court  has  jurisdiction.^ 

Frequently   statutes   require    also  a  copy   of  the  com- 

1  Doerfler  v.  Schmidt,  64  Cal.  265  ;  30  Pac.  Rep.  816;  Sichler  v.  Look, 
93  Cal.  600 ;  29  Pac.  Rep.  220. 

2  Hodges  V.  Hodges,  6  la.  78  ;  71  Am.  Dec.  388. 

^  Colerick  v.  Hooper,  3  Ind.  316 ;  66  Am.  Dec.  505. 
*  Doerfler  v.  Schmidt,  64  Cal.  265 ;  30  Pac.  Rep.  816 ;  Horton  v.  Gal- 
lardo,  88  Cal.  581 ;  26  Pac.  Rep.  375. 
^  Peck  V.  Strauss,  33  Cal.  678.  «  Barton's  Suit  in  Equity,  68,  69. 

'  Ante,  sec.  15. 
8  Miller  v.  Norfolk  &  N.  R.  Co.,  41  Fed.  Rep.  431 ;  ante,  sees.  13,  15. 


PKOOF  OF  SERVICE  OF  PROCESS.  289 

plaint,  or  other  pleading  of  the  plaintiff,  be  served  with 
the  writ  on  one  or  more  of  the  defendants.^  Where  this 
is  required  the  proof  must  show  it  or  a  judgment  rendered 
by  default  will  appear  on  the  face  of  the  record  to  be 
void.  So  where  the  statute  requires  that  a  copy  of  the- 
summons  be  left  with  the  defendant,  it  was  held  that  proof 
that  the  same  was  delivered  to  him  did  not  show  a  valid 
service,^  But  so  strict  a  rule  would  seem  to  be  unreason- 
able. 

If  a  certified  copy  is  required  to  be  served  it  is  not  suf- 
ficient to  show  that  a  copy  was  served,  without  showing 
that  it  was  certified.^  And  if  a  copy  is  required  to  be  de- 
livered to  each  of  the  defendants  the  return  must  show 
that  this  was  done  or  it  will  be  insufficient.* 

If  a  delivery  of  the  writ  or  notice  is  required  it  is  im- 
material how  it  is  delivered,  whether  by  the  hand  of  an 
officer,  by  mail,  or  otherwise.  The  proof  of  an  actual  de- 
livery to  the  party  to  be  served  however  accomplished, 
shows  personal  service  and  is  sufficient.^  And  if  the  return 
shows  personal  service  on  the  defendant  the  failure  to  show 
that  a  copy  of  the  summons  was  left,  as  required  by  the 
statute,  is  a  mere  irregularity,  the  return  shows  jurisdic- 
tion in  the  court,  and  does  not  subject  the  judgment  to 
collateral  attack.^ 

Where  service  by  mail  is  authorized  it  is  usually  held 
to  be  sufficient  to  make  proof  that  the  writ  or  notice  was 
deposited  in  the  post-office,  properly  addressed,  postage 
prepaid.^    But  if  required,  the  place  of  residence  of  the 

^  Ante,  sec.  37. 

»  Hall  V.  Graham,  49  Wis.  553  ;  5  N.  W.  Rep.  943 ;  Wilkinson  v.  Chil- 
6on,  71  Wis.  131  ;  36  N.  W.  Rep.  836. 
3  Lauderdale  v.  Ennis  Stationary  Co.,  80  Tex.  496  ;  16  S.  W.  Rep.  308. 

*  Rutherford  v.  Davenport,  16  S.  W.  Rep.  110;  Stewart  v.  Stringer,  41 
Uo.  400  ;  97  Am.  Dec.  278  ;  Wilkinson  v.  Chilson,  71  Wis.  131 ;  36  N.  W. 
Rep.  836. 

*  Heinlen  v.  Heilbron,  94  Cal.  636,  640 ;  30  Pac.  Rep.  8. 
«  Drake  v.  Dubenick,  45  Cal.  455,  463. 

19 


290  MEANS    OF    ACQUIRING    JURISDICTION. 

party  or  attorney  sending,  and  to  whom  the  notice  is  sent, 
must  be  shown.* 

A  strict  compliance  with  statutes  allowing  service  by 
leaving  a  copy  of  the  writ  at  the  residence,  or  last  usual  or 
usual  place  of  residence  of  the  defendant,  is  required  by 
the  courts,  and  a  return  or  affidavit  of  such  a  service 
must  show  that  the  acts  required  by  the  statute  were  per- 
formed.^ But  the  highest  degree  of  certainty  in  the  re- 
turn is  not  required.' 

The  proof  to  be  regular  must  show  the  place  of  service.* 
But  if  it  does  not,  and  the  court  is  one  of  general  jurisdic- 
tion, it  will  be  presumed  that  service  was  made  in  the 
proper  place.'  ^o  such  presumption  will  be  indulged  in 
favor  of  the  jurisdiction  of  an  inferior  court.^ 

Some  of  the  cases  holding  the  service  to  be  invalid  be- 
cause the  return  fails  to  show  service  within  the  county 
are  based  upon  statutory  provisions  to  that  effect.^ 

If  the  return  fails  to  state  the  name  of  the  person  upon 
whom  service  was  made  it  is  a  nullity.^  But  a  variance 
between  the  name  in  the  summons  and  in  the  return  does 
not  render  the  return  insufficient,  if  it  appears  from  the  re- 
turn that  the  defendant  was  served.^ 

In  an  action  against  husband  and  wife,  a  return  show- 

1  Perri  v.  Beaumont,  88  Cal.  108 ;  25  Pac.  Rep.  1109. 

*  McConkey  v.  McCraney,  71  Wis.  576 ;  37  N.  W.  Rep.  822. 

3  Bruce  r.  Cloutman,  45  N.  H.  37 ;  84  Am.  Dec.  Ill ;  Sexton  v.  Rock 
Island,  etc.,  Co.,  30  Pac.  Rep.  164. 

*  Weis  V.  Schoerner,  53  Wis.  72 ;  9  N.  W.  Rep.  794 ;  Taylor  v.  Ohio 
River  R.  Co.,  35  AV.  Va.  328;  13  S.  E.  Rep.  1009 ;  Kanawha  &  O.  R.  Co. 
V.  Ryan,  31  W.  Va.  364  ;  6  S.  E.  Rep.  924. 

*  Ante,  sec.  25;  Tallman  v.  Baltimore  &  O.  R.  Co.,  45  Fed.  Rep.  156; 
Baltimore  &  O.  R.  Co.  v.  Brant,  31  N.  E.  Rep.  464 ;  Lyles  v.  Haskell,  35 
S.  C.  391  ;  14  S.  E.  Rep.  829 ;  Knowles  v.  Logansport  Gas.  L.  Co.,  19  Wall. 
58  ;  Walke  v.  Bank  of  Circleville,  15  Ohio,  288,  298. 

**  Ante,  sec.  25. 

'  Kanawha  &  O.  R.  Co.  v.  Ryan,  31  W.  Va.  364  ;  6  S.  E.  Rep.  924 ;  Tay- 
lor V.  Ohio  River  R.  Co.,  35  W.  Va.  328  ;  13  S.  E.  Rep.  1009. 
8  Brooks  V.  Allen,  62  Ind.  401. 
'  Veasey  v.  Brigman,  9  Sou.  Rep.  728. 


PROOF  OF  SERVICE  OF  PROCESS.  291 

ing  service  ou  the  husband  gives  no  jurisdiction  over  the 
wife.^ 

Where  service  is  allowed  on  one  person  only  where 
some  other  person  can  not  be  found,  the  proof  of  service 
must,  where  service  is  made  on  the  second  person,  show- 
that  the  first  could  not  be  found.^  In  other  words,  where 
service  is  allowed  to  be  made  on  a  particular  person  or  of- 
ficer only  on  condition,  the  return  must  show  the  existence 
of  the  condition,  or  it  is  insufiicient,^  And  where  service 
is  required  to  be  made  on  a  certain  officer  or  agent  desig- 
nated in  the  statute,  the  return  must  show  service  on  such 
officer  or  agent,  and  designate  him  by  the  name  or  descrip- 
tion used  in  the  statute.^ 

The  service  of  a  summons  may  be  shown  by  the  accept- 
ance of  service  of  the  same  by  the  defendant  or  his  attor- 
ney.^ But  where  the  acceptance  is  required  by  the  statute 
to  be  made  in  a  specified  way  or  in  a  particular  form,  the 
statute  must  be  complied  with  or  the  acceptance  will  not 
be  binding.^  And  where  the  acceptance  of  service  is  by  a 
third  party,  it  must  be  shown  that  he  had  authority  to  act 
for  the  party  for  whom  he  assumed  to  act.'^  So,  where  the 
party  does  not  appear,  proof  of  the  genuineness  of  the  sig- 
nature to  the  acceptance  is  necessary.^  And  an  acknowl- 
edgment of  service  can  not  be  made  by  a  minor  or  by  his 
guardian  for  him.^  It  would  probably  be  held  to  the  con- 
trary in  some  of  the  states,  where  it  is  held,  against  the 
clear  weight  of  authority,  that  a  guardian  may  appear  in 

»  Ante,  sec.  37  ;  Carper  v.  Woodford,  24  Neb.  135  ;  38  N.  W.  Rep.  39. 

2  Miller  v-  Norfolk  &  W.  R.  Co.,  41  Fed.  Rep.  431. 

•'  Ante,  sec.  37:  Miller  r.  Norfolk  &  W.  R.  Co.,  41  Fed.  Rep.  431  ;  Jen- 
kins V.  Crofton,  9  S.  W.  Rep.  406. 

*Tallman  v.  Baltimore  &  O.  R.  Co.,  45  Fed.  Rep.  156;  Dickerson  v. 
Burlington,  etc.,  R.  Co.,  43  Kan.  702;  24  Pac.  Rep.  936. 

*  Gay  V.  Grant,  101  N.  C.  206;  8  S.  E.  Rep.  99 ;  Wilson  v.  Martin-Wil- 
son Ant.  Fire-Alarm  Co..  149  Mass.  24;  20  N.  E.  Rep.  318;  Downs  v. 
Board  of  Directors,  30  Pac.  Rep.  147 

«  Godwin  r.  Monds,  106  N.  C.  448 ;  10  S.  E.  Rep.  1044. 

■  Finney  v.  Clark,  86  Va.  354  ;  10  S.  E.  Rep.  569. 

^  Downs  '•.  Board  of  Directors,  30  Pac.  Rep.  147. 

'  Kansas  City  &  R.  R.  Co.  v.  Campbell,  62  Mo.  585  ;  post,  sec.  41. 


292  MEANS    OF    ACQUIRING    JURISDICTION. 

an  action  for  his  ward  and  thereby  waive  the  service  of 
summons  on  the  latter.* 

Where  service  is  made  out  of  the  state,  the  affidavit  is 
usually  required  to  state,  in  addition  to  the  other  facts, 
that  the  person  served  is  the  identical  person  named  in  the 
action  or  proceeding.^ 

Where  a  return  day  is  named  in  the  summons,  the  re- 
turn must  show  service  thereof  the  requisite  time  before 
the  return  day.^  But  where  the  service  of  the  summons 
is  personal,  the  defect  in  the  return  showing  service  for 
too  short  a  time  before  the  return  day  is  an  irregularity 
merely  and  does  not  render  the  judgment  void  or  subject 
to  collateral  attack.* 

The  officer's  return  may  be  amended  to  conform  to  the 
facts,  if  it  fails  to  show  a  valid  service  when  one  was  actually 
made.^  And  this  may  be  done  after  judgment.^  But  the 
right  to  amend  must  be  subject  to  intervening  rights  ac- 
quired on  the  faith  of  the  original  return  showing  the 
judgment  to  have  been  void.  The  fact  that  subsequent 
mortgagees  or  other  persons  acquiring  an  interest  adverse 
to  the  judgment  will  be  injured  by  the  enforcement  thereof 
when  validated  by  the  amended  return,  can  not  affect  the 
right  to  have  the  amendment  made,  unless  such  persons 
have  been  misled  or  influenced  by  the  original  return.' 

If,  however,  the  sufficiency  of  the  service  has  been  con- 
tested and  an  attempt  is  made  to  amend,  after  the  action 
has  been  finally  determined,  it  must  be  done  upon  notice 

'  Post,  sec.  41 ;  Smith  v.  McDonald,  42  Cal.  484 ;  Richardson  v.  Loupe, 
80  Cal.  490,  499 ;  22  Pac.  Rep.  227. 

=  Cole  V.  Allen,  51  Ind.  122. 

3  Richmond  &  D.  R.  Co.  v.  Rudd,  88  Va.  648 ;  14  S.  E.  Rep.  361 ;  Vir- 
ginia F.  &  M.  Ins.  Co.  V.  Vaughan,  88  Va.  832 ;  14  S.  E.  Rep.  754. 

*  Ante,  sees.  13,  23,  37,  38. 

*  Ante,  sec.  38  ;  Tyler  v.  Jewell,  11  S.  W.  Rep.  25  ;  Shenandoah  Val.  R. 
Co.  V.  Ashby,  86  Va.  232 ;  9  S.  E.  Rep.  1003 ;  Adams  v.  Basile,  35  La. 
Ann.  101  ;  O'Hara  v.  Independence,  etc.,  Co.,  42  La.  Ann.  226 ;  7  Sou. 
Rep.  533 ;  Hackett  v.  Lathrop,  36  Kan.  661 ;'  14  Pac.  Rep.  220. 

^  Ante,  sec.  38. 

T  Shenandoah  Val.  R.  Co.  v.  Ashby,  86  Va.  232  ;  9  S.  E.  Rep.  1003. 


1 


PROOF  OF  SERVICE  OF  PROCESS.  293 

to  the  party  to  be  affected.  Otherwise  the  amendment 
can  not  be  effective,' 

If,  on  appeal,  the  return  is  found  to  be  defective  but 
shows  some  service,  the  cause  will  not  be  dismissed,  but 
remanded,  so  that  the  return  may  be  amended  if  proper 
service  was  in  fact  made.^ 

The  general  rule  is,  that  where  the  proof  is  made  by 
an  officer  acting  under  oath,  the  same  may  be  made  in 
the  form  of  a  return  without  verification,  otherwise  it 
must  be  by  affidavit.^  And  service  made  by  a  deputy, 
regularly  appointed,  is  service  by  the  officer,  and  may  be 
shown  by  a  return,  but  such  return  must  be  made  in  the 
name  of  the  ofiicer  under  whom  he  acts.^  But  the  ques- 
tion whether  a  return  made  by  a  special  deputy,  not 
sworn,  can  be  so  made,  is  not  definitely  settled.  The  bet- 
ter rule  seems  to  be,  that  in  such  case  the  party  making  the 
service  is  not  acting  under  oath, 'and  therefore  the  proof 
must  be  by  afiidavit,*  And  where  such  bailiff  is  appointed 
by  the  court,  he  is  sometimes  required  by  statute  to  make 
his  return  under  oath,  although  vested  by  the  appointment 
with  the  powers  of  the  sheriff,^ 

If  it  does  not  appear  whether  the  person  appointed  was 
sworn  or  not,  it  will  be  presumed,  in  aid  of  the  jurisdic- 
tion, that  he  was  sworn,^  And  it  has  been  said,  and  w^ith 
strong  reason,  that  where  a  return  is  made  by  a  special 
deputy,  whether  sworn  or  not,  it  is  made  under  the  au- 
thority and  sanction  of  the  sheriff's  office,  and  is  in  legal 
effect  the  return  of  the  sheriff,® 

It  is  not  always  necessary  that  it  shall  be  shown  by  the 
return  that  the  person  making  it  was  a  deputy.  If  it  ap- 
pears that  the  sheriff*  has  adopted  the  act  done,  this  has 
been  held  to  be  sufficient,^     And  where  it  does  not  affirm- 

'  Jenkins  v.  Crofton,  9  S.  W.  Rep.  406. 

^  O'Hara  v.  Independence,  etc.,  Co.,  42  La.  Ann.  226  ;  7  Sou.  Rep.  535. 
3  Johnson  v.  Johnson,  23  Fla.  413  ;  2  Sou.  Rep.  834. 
*  Village  of  Glencoe  v.  The  People,  78  111.  382. 
^  Lillard  v.  Brannin,  16  S.  W.  Rep.  349. 

®  Dissenting  opinion  of  Raney,  J.,  in  Johnson  r.  Johnson,  23  Fla.  413; 
2  Sou.  Rep.  834. 
'  Bennethum  v.  Bowers,  133  Pa.  St.  332  ;  19  Atl.  Rep.  361. 


294  MEANS    OF   ACQUIRING   JURISDICTION. 

atively  appear  by  the  return  whether  the  party  making 
the  return  was  a  regularly  appointed  deputy  or  not,  it  will 
be  presumed  that  he  was  so  appointed.^ 

It  is  held  that,  where  the  return  is  made  in  the  name  of 
a  special  deputy  instead  of  in  the  name  of  the  principal, 
showing  personal  service,  the  defect  is  only  an  irregularity 
and  can  not  be  taken  advantage  of  by  a  stranger  to  the 
judgment  or  by  collateral  attack.^  But  there  are  cases 
holding  to  the  contrary.  It  being  held  that  a  return 
made  in  the  name  of  the  deputy  is  a  nullity.^ 

Ordinarily,  the  time  when  a  return  is  made,  if  before 
judgment,  is  not  material.  But  it  has  been  held  that 
where  a  writ  issuing  out  of  a  court  of  inferior  jurisdiction 
is  required  to  be  returned  at  an  hour  named  in  the  statute, 
a  return  made  at  a  later  hour  will  not  give  jurisdiction.* 
If,  however,  the  jurisdiction  does  not  depend  upon  the  re- 
turn, but  upon  the  service,  and  a  defective  return  may  be 
amended,  as  we  have  shown,  it  is  quite  clear  that  an  entire 
failure  to  make  the  necessary  proof  may  be  supplied  even 
after  judgment.^ 

As  to  the  efiect  of  the  officer's  return,  whether  con- 
clusive or  not,  the  authorities  are  so  conflicting  as  to  ren- 
der it  impossible  to  lay  down  any  positive  rule  on  the 
subject.  The  question  has  been  considered  in  another 
place.^ 

It  may  be  said,  in  this  connection,  however,  that  the  evi- 
dent tendency  of  the  later  decisions  is  to  allow  the  return 
to  be  impeached  by  other  evidence  even  as  between  the 
parties  to  the  action.^ 

1  Martin  v.  Gray,  142  U.  S.  236 ;  12  Sup.  Ct.  Rep.  186. 

"^  Hill  V.  Gordon,  45  Fed.  Rep.  276. 

»  Rowley  v.  Howard,  23  Cal.  402. 

♦  Brown  v.  Carroll,  16  R.  I.  604 ;  18  Atl.  Rep.  283. 

5  Ante,  sec.  38;  Britton  v.  Larson,  23  Neb.  806 ;  37  N.  W.  Rep.  681. 

^  Arite,  sec.  22,  p.  116. 

'  Ante,  sec.  22,  p.  116 ;  Crosby  v.  Farmer,  39  ]\Iinn.  305 ;  40  N.  W.  Rep.  71 ; 
Carr  t).  Commercial  Bank,  16  Wis.  50;  Wheeler  &  AVilson  Mfg.  Co.  v. 
McLaughlin,  8  N.  Y.  Sup.  95 ;  Grady  v.  Gosling,  48  Ohio  St.  665 ;  29  N. 
E.  Rep.  768;  McComb  r.  Council  Bluffs  Ins.  Co.,  48  N.  W.  Rep.  1038. 


PROOF  OF  SERVICE  OF  PROCESS.  295 

If  the  proof  of  service  is  made  by  a  private  individual 
it  may  be  contradicted.^ 

Defects  in  the  return  are  not  grounds  for  quashing  the 
writ.^ 

As  has  been  shown  elsewhere  it  will  be  presumed  in  favor- 
of  the  jurisdiction  of  a  court  of  general  jurisdiction  that 
process  has  been  properly  served.^  Therefore  a  want  of 
proof  of  service  is  often  immaterial.  But  where  proof  of 
service  is  made  and  shows  an  insufficient  service  it  will  not 
be  presumed,  in  aid  of  the  jurisdiction,  that  something 
dift'erent  was  done.*  For  this  reason  a  defective  return  or 
affidavit  of  service  is  often  worse  than  none  at  all.  So  a 
defect  in  the  proof  of  service,  or  an  entire  failure  to  make 
such  proof,  is  often  supplied  by  a  recital  in  the  record  that 
the  defendant  has  been  served.^  And  where  a  return  is 
made  of  a  summons,  containing  the  names  of  several  de- 
fendants, that  a  part  have  been  served  and  others  not 
found,  and  is  silent  as  to  the  other  defendants,  service  out 
of  the  county  will  not  be  presumed.* 

It  will  be  seen  from  what  has  been  said  that  in  all 
of  the  cases  the  return,  or  other  proof  of  service,  has  been 
required  to  show  that  the  statute  has  been  fully  complied 
with  in  making  the  service.  In  many  of  them  the  most 
literal  exactness  has  been  required,  some  of  the  cases  pro- 
nouncing against  the  sufficiency  of  the  return  on  verbal 
.inaccuracies  that  seem  to  be  too  trivial  and  immaterial  for 
serious  consideration.  In  this  respect  some  of  the  cases 
seem  to  go  to  the  extreme.  This  results,  no  doubt,  from 
the  extreme  care  exercised  by  the  courts  to  prevent  an 
adjudication  against  a  party  without  the  opportunity  to  be 
heard.     For  this  reason  greater  strictness,  if  possible,  has 

'  Detroit  Free  Press  Co.  r.  Bragg,  78  Mich.  650 ;  44  N.  W.  Rep.  149. 

'  Virginia  F.  &  M.  Ins.  Co.  v.  Vaughan,  88  Va.  832  ;  14  S.  E.  Rep.  754. 

^  Ante,  sec.  25. 

*  Ante,  sec.  25 ;  Godfrey  v.  Valentine,  39  Minn.  336 ;  40  X.  W.  Rep. 
163. 

^  Ante,  sees.  23,  25 ;  post,  sec.  40 ;  Ford  r.  Delta,  etc.,  Co.,  43  Fed.  Rep. 
181. 

«  Dickison  v.  Dickison,  124  111.  483  ;  16  N.  E.  Rep.  861. 


296  MEANS    OF    ACQUIRING    JURISDICTION. 

been  shown  in  cases  of  constructive  service.  And  out  of 
the  distinction  between  actual  and  constructive  notice  has 
grown  up  the  doctrine,  maintained  in  some  of  the  cases 
and  denied  in  others,  that  a  defective  and  insufficient  per- 
sonal service  will  uphold  a  judgment  against  a  collateral 
attack,  or,  in  other  words,  will  vest  the  court  with  juris- 
diction, while,  in  case  of  constructive  service,  it  will  not; 
and  that  statutes  authorizing  constructive  service  must  be 
strictly,  and  those  authorizing  personal  service  only  sub- 
stantially, complied  with.  These  are  distinctions  that  have 
been  wholly  repudiated  by  many  of  the  later  cases  and 
with  reason.  The  presumptions  in  favor  of  the  juris- 
diction of  a  court  of  general  powers  should  be  precisely 
the  same  whether  it  obtains  its  jurisdiction  by  one  kind 
of  service  or  another.^ 

However  this  may  be,  and  it  must  be  regarded  as  an 
open  question  about  which  the  authorities  wholly  disagree, 
it  must  be  remembered  that  in  the  cases  cited  in  this  sec- 
tion the  questions  raised  as  to  the  sufficiency  of  the  proof 
of  service  were  mainly  cases  in  which  the  question  arose 
on  appeal,  or  where  the  attack  was  made  by  some  other 
direct  proceeding,  and  not  collaterally.  And  no  doubt,  in 
many  of  the  cases,  if  the  question  had  been  presented  col- 
laterally, the  service,  as  shown  by  the  proof,  would  have 
been  upheld.  In  other  words,  it  would  have  been  held 
that  the  service  was  defective,  or  irregular,  but  not  void. 

The  effect  of  defective  service  and  the  waiver  of  defects 
will  be  considered  in  another  place.^ 

In  case  of  an  appeal,  or  other  direct  attack,  the  question 
is  not,  necessarily,  whether  the  court  had  jurisdiction,  but 
whether  the  court  below  erred  in  holding  the  return  of 
service  to  be  sufficient.  It  must  be  borne  in  mind,  also, 
that  the  question  as  to  the  sufficiency  of  the  return  is  not, 
necessarily,  a  jurisdictional  question.  A  court,  as  we  have 
shown,  obtains  jurisdiction  by  the  service  and  not  by  the 
proof  of  it.  In  many  cases,  of  course,  the  jurisdiction  of 
the  court  is  defeated  or  not  upheld  after  it  is  acquired,  be- 

^Ante,  sec.  25,  p.  159.  '  Pof<t,  sees.  40,  41. 


DEFECTIVE    PROCESS    AND    SERVICE,  297 

cause  the  proof  of  the  fact  which  gave  it  jurisdiction  is 
not  made.  But  if  the  jurisdiction  actually  exists  it  should 
never  be  allowed  to  fail  because  the  formal  proof  of  it 
is  not  sufficient,  if  the  judgment  plaintiff  is  able  and  offers 
to  supply  the  necessary  proof.  In  many  of  the  cases,  as 
has  been  shown  in  this  section,  the  right  to  supply  the 
necessary  proof  has  been  liberally  accorded,  but  there  are 
other  cases  in  which,  apparently,  the  service  and  the  evi- 
dence proving  or  attempting  to  prove  it  are  treated  as  one 
and  the  same  thing. 

40.  Defective  process  and  service. — This  subject  has 
been  anticipated,  to  a  great  extent,  in  earlier  sections.'  It 
is  not  the  purpose  of  this  section  to  show  what  is  defective 
service,  as  distinguished  from  void,  or  no  service.  That 
has  already  been  done.^  But  to  point  out  the  effect  of  de- 
fective service. 

The  distinction  between  defective  and  void  service  is 
important.  The  former  confers  jurisdiction,  the  latter 
does  not.^  Defective  process  or  service,  therefore,  is  not 
subject  to  collateral  attack,  but  void  process  or  service  is 
always  open  to  attack,  collateral  or  direct,  unless  service, 
or  proof  of  it,  has  been  waived.*  The  subject  of  waiver 
will  be  considered  in  another  section.^ 

A  distinction  is  very  properly  made  between  a  defect 
that  affects  the  notice  of  the  time  and  place  of  the  hear- 
ing and  other  defects,  as,  for  example,  an  erroneous  state- 
ment of  the  amount  of  the  plaintift''s  demand.^ 

1  Ante,  sees.  13,  15,  23,  25,  32,  33,  36,  37,  38,  39. 

2  Ante,  sees.  32,  33,  36,  37,  38,  39. 

'  Ante,  sees.  13,  22,  23,  36;  Quarl  v.  Abbett,  102  Ind.  233;  1  N.  E.  Rep, 
476;  Elliott  App.  Pro.,  sees.  331,  332. 

*  Ante,  sec.  22 ;  post,  sec.  41 ;  Black  on  Judg.,  sees.  223,  224 ;  Schneitman 
r.  Noble,  75  la.  120;  39  N.  W.  Rep,  224;  Baker  t;.  Swift,  87  Ala.  530;  6 
Sou.  Rep,  153;  Parker  r.  Wardner,  13  Pac.  Rep,  172;  Lindsay  r.  Tansley, 
18  N,  Y,  Sup.  317;  Webster  v.  Daniel,  14  S.  W.  Rep.  550;  Byers  v.  Fow- 
ler, 12  Ark,  218;  54  Am.  Dec.  271 ;  Bank  of  Missouri  v.  Matson,  26  Mo, 
243;  72  Am.  Dec.  208;  Pursley  v.  Hayes,  22  la.  11  ;  92  Am.  Dec.  350. 

*  Pos^t,  sec.  41. 

«  Richmond  &  D.  R.  Co.  ;•.  Rudd,  88  Va.  648;  14  S.  E.  Rep.  361, 


298  MEANS    OF    ACQUIRING    JURISDICTION. 

If  tlie  defect  is  in  the  proof  of  service,  and  not  in  the 
service,  the  proof  may  be  amended  so  as  to  show  the  facts.^ 
And  where  the  defect  is  in  the  writ,  and  service  of  it  has 
been  made  on  the  proper  person,  the  writ  may,  in  some 
cases,  be  amended  so  as  to  conform  to  the  complaint,  as  in 
case  of  misnomer.^  Even  in  case  of  a  direct  attack,  for 
defects  in  the  service,  the  objection  must  be  made  within  a 
reasonable  time,  or  the  relief  will  be  denied.^ 

It  has  been  held,  however,  that  the  proof  of  service, 
where  judgment  has  been  taken  by  default,  can  not  be 
made  after  an  appeal  has  been  taken/  This  may  be  true, 
so  far  as  the  right  to  a  reversal  of  the  case  is  concerned, 
but  the  statement  in  the  opinion  in  the  case  cited,  that  the 
"  defect  was  jurisdictional  and  could  not  be  cured,"  can 
not  be  maintained.  As  has  been  shown  elsewhere  in  this 
work,  if  the  service  is  properly  made,  jurisdiction  at 
once  attaches,  and  defective  proof  of  the  service  may  be 
amended.  It  is  not  the  proof  of  service  that  is  jurisdic- 
tional, but  the  service  itself.^ 

In  some  of  the  cases,  a  distinction  is  made  between 
actual  and  constructive  service  as  to  the  effect  of  defective 
service  or  proof  of  service,  it  being  held  that,  in  case  of 
constructive  service,  the  statute  must  be  strictly  complied 
with ;  that  nothing  less  than  such  a  compliance  with  the 
statute  will  give  the  court  jurisdiction,  and  that  no  pre- 
sumption will  be  indulged  in  favor  of  the  jurisdiction  of 
the  court  attempted  to  be  obtained  by  constructive  notice. 
But,  as  we  have  attempted  to  show  elsewhere,  there  is 
really  no  sufficient  ground  for  such  a  distinction,  and  the 
later  cases  show  a  decided  inclination  to  put  actual  and 
constructive  service  on  the  same  footing  in  this  respect.^ 

^  Ante,  sec.  39 ;  Commercial  Union  Assur.  Co.  v.  Everhart,  88  Va.  952 ; 
14  S.  E.  Rep.  836 ;  Mills  v.  Rowland,  49  N.  W.  Rep.  413 ;  Turner  v.  Holden, 
109  N.  C.  182;  13  S.  E.  Rep.  731 ;  Shufeldt  v.  Barlass,  33  Neb.  785;  51  N. 
W.  Rep.  134;  Beutell  v.  Oliver,  15  S.  E.  Rep.  307. 

2  Gulf  C.  &  S.  F.  Ry.  Co.  r.  James,  48  Fed.  Rep.  148. 

3  Post,  sec.  41  ;  Patmor  v.  Rombauer,  41  Kan.  295 ;  21  Pac.  Rep.  284. 
*  Hall  V.  Graham,  49  Wis.  553 ;  5  N.  W.  Rep.  943. 

s  Ante,  sees.  38,  39. 

6  AnU,  sec.  25,  p.  159 ;  sec.  38,  p.  282 ;  Pennoyer  v.  Neff,  95  U.  S.  714, 


DEFECTIVE    PROCESS    AND    SERVICE.  299 

But  there  may  be  defects  in  constructive  service  that  are 
necessarily  fatal  w^hich  would  not  be  so  in  case  of  actual 
service.  Misnomer  is  one  of  these.  Actual  service  on  a 
party,  although  by  a  wrong  name,  is  such  notice  as  must 
put  him  on  inquiry,  while  constructive  service  of  a  like- 
kind  is  no  notice  at  all.  One  is  defective  service,  the 
other  void  service.^ 

The  dividing  line  between  defective  and  void  service 
can  not  be  accurately  traced  or  defined.  The  distinction 
is  as  that  between  some  notice  and  no  notice  at  all.  If  the 
service,  whether  actual  or  constructive,  is  such  that  a 
party  must  know  from  it  that  an  action  has  been  brought 
against  him  in  a  designated  court,  this  should  be  held  to 
be  sufficient  to  put  him  upon  inquiry  as  to  all  the  other 
facts  necessary  for  him  to  know.  But,  as  we  have  seen, 
no  such  easy  solution  of  the  question  can  be  found  in  the 
decided  cases.^ 

Like  most  other  questions  affecting  the  subject  of  juris- 
diction, the  rules  applicable  to  the  sufficiency  of  the  serv- 
ice are  often,  if  not  generally,  artificial  and  arbitrary. 
Fortunately,  the  courts  and  law-makers  are  showing  a 
tendency  and  inclination  to  be  governed  by  reason,  rather 
than  by  technical  and  arbitrary  rules.  The  statutes  in  many 
of  the  states,  providing,  in  effect,  that  courts  must  disre- 
gard defects  in  the  pleadings  or  proceedings  which  do  not 
affect  the  substantial  rights  of  the  parties,  are  strong  indi- 
cations of  this  tendency.  But  these  wholesome  statutory 
provisions  seem  not  to  be  observed  by  the  courts,  as  they 
should  be,  and  questions  of  jurisdiction,  involving  the  va- 
lidity of  judgments,  are  too  often  made  to  turn  upon 
purely  technical  rules,  without  reference  to  the  real  merits 
of  the  controversy. 

721;  Applegate  v.  Lexington  &  Carter  Co.  Mining  Co.,  117  U.  S.  255;  6 
Sup.  Ct.  Rep.  742,  749 ;  Stuart  v.  Anderson,  70  Tex.  588 ;  8  S.  W.  Rep. 
296. 

^  Ante,  sec.  38,  p.  281 ;  Skelton  v.  Sackett,  91  Mo.  377 ;  3  S.  W.  Rep.  874. 

^  Ante,  sec.  36. 


300  means  of  acquiring  jurisdiction. 

41.  Waiver  of  process  and  service  and  defects  therein. 
The  question  of  waiver  by  appearance,  and  by  failure  to 
object  to  the  sufficiency  of  process  or  its  service  at  the 
proper  time,  has  received  attention.^ 

The  general  rule  is  that  a  general  appearance  to  the  ac- 
tion is  a  waiver  of  all  defects  in  the  service  and  of  an  en- 
tire want  of  service.  In  other  words,  an  appearance  is 
equivalent  to  actual  service.^  What  will  amount  to  such 
an  appearance  has  been  considered.^ 

It  must  be  remembered,  in  tiiis  connection,  that  persons 
laboring  under  disabilities,  minors,  and  insane  persons, 
can  not  waive  defects  in  process  or  service,  by  appearance 
or  otherwise,  nor  can  their  guardians  waive  the  same  for 
them.* 

The  right  of  a  general  guardian  to  appear  for  his  ward 
has  been  maintained  in  some  cases.^  But  the  great  weight 
of  authority  is  the  other  way.^ 

There  are  cases  in  which  the  appearance  of  the  guardian 
is  binding  on  the  ward  because  service  of  process  is  not 
necessary  to  give  jurisdiction,  as  in  petitions  for  the  sale 
of  real  estate  or  other  proceedings  in  rem.,  in  which  the 
filing  of  the  petition  or  seizure  of  the  property  confers 
jurisdiction.^ 

The  fact  that  a  guardian  is  authorized  by  statute  to  ap- 
pear and  defend  for  his  ward  does  not  affect  the  question. 

^  Ante,  sees.  13,  22,  34. 

^  Ante,  sees.  22,  34;  Pixley  v.  Winchell,  7  Cowen,  366;  17  Am.  Dec. 
525. 

'  Ante.  sec.  34. 

*  Ante,  sec.  13,  p.  43;  Greenman  v.  Harvey,  63  111.  387;  Dickison  v. 
Dickison,  124  111.  483;  16  N.  E.  Rep.  861 ;  Clark  v.  Thompson,  47  111.  25; 
95  Am.  Dec.  457,  461,  note  ;  Fitch  v.  Cornell,  1  Sawyer  (IJ.  S.  Cir.  Ct. 
Rep.),  156,  171. 

5  Smith  V.  McDonald,  42  Cal.  484 ;  Richardson  v.  Loupe,  80  Cal.  490 ; 
22  Pac.  Rep.  227. 

«  10  Am.  &  Eng.  Enc.  of  Law,  688. 

■^  Ante,  sec.  38,  p.  283;  Mohr  v.  Manierre,  101  U.  S.  420;  Scarf  v.  Al- 
drich,  32  Pac.  Rep.  324 ;  Gager  v.  Henry,  5  Sawyer  (U.  S.  Cir.  Ct.),  243; 
Robb  V.  Irwin,  15  Ohio,  689,  699;  Sheldon  v.  Newton,  3  Ohio  St.  494, 
502. 


I 


WAIVER    or    PROCESS    AND    SERVICE,  ETC.  301 

Such  aiitlioritj  exists  only  after  the  ward  has  been  prop- 
erly served  with  process.^ 

The  general  rule  is  that  a  court  has  no  jurisdiction  to 
appoint  a  guardian  ad  litem  to  appear  for  a  minor  without 
the  service  of  process  as  required  by  law.^  And  if  tha 
court  has  no  jurisdiction  to  appoint  the  guardian,  cer- 
tainly the  person  so  appointed  could  not,  by  any  act  on 
his  part,  give  the  court  jurisdiction  to  proceed  further  in 
the  action.^ 

It  is  held,  however,  in  some  cases,  that  where  the  pro- 
ceeding is  in  equity,  and  the  wards  are  served,  the  appear- 
ance and  answer  for  them  by  their  general  guardian,  with- 
out the  appointment  of  a  guardian  ad  litems  is  binding,  al- 
though irregular,  on  the  ground  that  minor  defendants  are 
the  wards  of  the  court,  and,  where  the  fact  of  their  mi- 
nority is  called  to  the  attention  of  the  court,  their  rights 
will  be  protected,  and  they  will  be  bound  by  the  proceed- 
ing/ 

There  is  a  conflict  in  the  authorities  as  to  the  effect  of 
an  appointment,  and  appearance  by,  a  guardian  ad  litem 
without  service  on  a  minor.  Some  of  the  cases  hold  that 
a  judgment  rendered  under  such  an  appearance  is  only  ir- 
regular and  voidable,  and  not  void.^  But  it  is  difficult  to 
conceive  of  any  principle  upon  which  such  a  conclusion 
can  be  maintained.  It  is  not  a  case  of  defective  service, 
but  of  an  entire  want  of  service.  The  appearance  is  by 
one  wholly  unauthorized  and  in  a  case  where  the  party  is 
disabled  either  to  waive  the  service  himself  or  to  authorize 
another  person  to  do  so  for  him.  The  court,  not  having 
acquired  jurisdiction   of  the  person  of  the  defendant,  has 

>  Dickison  v.  Dickison,  124  111.  483 ;  16  N.  E.  Rep.  861. 

^  Ingersoll  r.  Mangam,  84  N.  Y.  622;  Insurance  Co.  r.  Bangs,  103  U.  S. 
435;  Johnston  v.  S.  F.  Sav.  Union,  63  Cal.  554;  Good  r.  Norley,  28  la. 
188,  198. 

'  Hough  V.  Canby,  8  Blkf.  (Ind.)  301 ;  Robbins  v.  Robbing,  2  Ind.  74; 
Abdil  V.  Abdil,  26  Ind.  287 ;  Clark  v.  Thompson,  47  111.  25 ;  95  Am.  Dec. 
457,  461,  note ;  Ingersoll  r.  Mangam,  84  N.  Y.  622. 

*  Simmons  v.  Baynard,  30  Fed.  Rep.  532. 

*  McAnear  v.  Epperson,  54  Tex.  220;  38  Am.  Rep.  625;  Wheeler  v 
Ahrenbeak,  54  Tex.  535. 


302  MEANS    OF    ACQUIRING    .TUIUSDICTION. 

no  power  to  render  judgment  against  him.  Without  an 
appearance,  or  service,  the  judgment  would  undoubtedly 
be  void.  This  being  so,  it  is  rather  a  remarkable  con- 
clusion that  a  court  that  is  without  jurisdiction  to  take 
any  step  in  the  case,  may  appoint  a  guardian  ad  litem  with- 
out authority,  and  with  his  aid  render  a  judgment  that  is 
merely  erroneous,  and  which,  but  for  the  interposition  of 
such  guardian,  would  have  been  void.  The  better  rule,  so 
far  as  the  reason  of  it  is  concerned,  is  that  a  judgment 
rendered  under  such  circumstances  is  wholly  void.  And 
an  examination  of  the  authorities  relied  upon  as  support- 
ing the  doctrine  that  such  a  judgment  is  merely  erroneous 
will  show  that  they  are  generally  founded  upon  the  fact 
that  the  proceeding  is  one  in  rem.,  in  which  the  seizure  of 
the  property  or  a  petition  for  its  sale  gives  jurisdiction 
and  not  the  giving  of  notice.^ 

The  question  must  not  be  confused  with  that  of  the  fail- 
ure to  appoint  a  guardian  ad  litem  where  there  has  been 
service,  and  kindred  questions,  which  are  not  jurisdic- 
tional, and  which  do  not,  therefore,  affect  the  validity  of 
the  judgment,  but  are  mere  errors  and  cause  for  direct 
attack.^  Nor  with  the  doctrine  of  presumption  wliere  it 
does  not  appear  that  service  was  not  made  on  the  minor 
defendants,  or  where  the  recitals  in  the  record  show  that 
service  was  made.  In  such  cases,  minors  stand  upon 
the  same  footing  as  adults,  and  may  be  barred  from  at- 
tacking the  judgment  collaterally.^  Nor  with  those  cases 
above  referred  to,  which  are  not  adversary  in  their  nature, 
and  in  which  the  filing  of  the  necessary  petition  gives  ju- 
risdiction. In  such  cases,  while  notice  is  required  by  stat- 
ute, the  giving  of  such  notice  is  not  necessary  to  give  ju- 

^  Ante,  sec.  14,  p.  49 ;  sec.  38,  p.  283 ;  McAnear  v.  Epperson,  54  Tex. 
220;  38  Am.  Rep.  625 ;  Mohr  r.  Manierre,  101  U.  S.  420;  Scarf  v.  Aldrich, 
32  Pac.  Rep.  324 ;  Robb  v.  Irwin,  15  Ohio,  689,  699 ;  Sheldon  v.  Newton, 
3  Ohio  St.  494,  502 ;  Good  v.  Norley,  28  la.  188,  193. 

2  Porter  v.  Robinson,  3  A.  K.  Marshall,  253;  13  Am.  Dec.  153,  159, 
note. 

»  Ante,  sees.  22,  25. 


1 


WAIVER    OF    PROCESS    AND    SERVICE,  ETC.  303 

risdiction,  and  the  failure  to  give  it  is  but  an  irregularity 
not  aflecting  the  validity  of  the  judgment.^ 

There  is  a  diversity  of  opinion  upon  the  question  whether 
an  application  by  an  administrator  or  guardian  is  a  pro- 
ceeding in  rem.,  within  the  rule  that  notice  is  not  necessary 
to  give  jurisdiction,  but  only  to  make  it  effectual.^ 

An  attorney  can  not  waive  service  upon  a  minor.^ 

The  receipt  of  the  benefits  of  a  judgment  rendered  upon 
defective  service  is  a  waiver  of  such  defect,  but  not  where 
the  judgment  is  void  because  of  an  entire  want  of  notice.* 

An  agreement  made  beforehand  to  waive  the  return  of 
service  at  the  required  time  has  been  held  to  be  insufli- 
cient  to  give  the  court  jurisdiction.^ 

A  party  summoned  by  a  wrong  name,  who  appears  and 
allows  judgment  to  be  taken  against  him  by  his  true  name, 
can  not  afterward  contest  the  judgment  because  of  the 
defective  service.^ 

The  rule  is  the  same  where  the  judgment  is  taken 
against  a  corporation  or  an  individual  by  the  wrong  name, 
under  which  service  is  made.'^ 

By  setting  up  certain  objections  to  defective  service, 
other  objections  not  made  are  waived.'^ 

If  the  service  is  defective,  merely,  and  not  void,  a  fail- 
ure to  appear  and  object  is  a  waiver,  and  the  entry  of  judg- 
ment, after  default,  can  not  be  resisted  on  that  ground.^ 
And  the  failure  to  attack  a  judgment,  for  an  unreasonable 

*  Sheldon  v.  Newton,  3  Ohio  St.  494,  502. 

^  See  the  authorities  cited  on  both  sides  of  the  proposition  in  the  case 
of  Good  V.  Norley,  28  la.  188,  in  which  the  court  was  equally  divided 
and  the  authorities  cited  much  the  same. 

»  Bonnell  r.  Holt,  89  111.  71  ;  Valentine  i'.  Cooley,  Meigs  (Tenn.),  613; 
33  Am.  Dec.  166. 

^  Gay  V.  Grant,  101  N.  C.  206;  8  S.  E.  Rep.  99. 

5  Brown  v.  Carroll,  16  R.  I.  604  ;  18  Atl.  Rep.  283. 

«  Williams  r.  Hitzie,  83  Ind.  303. 

"  Young  V.  South  Tredegar  Iron  Co.,  1  Pickle  (Tenn.),  189;  2  S.  W. 
Rep.  202. 

8  Feihleman  v.  Esmonds,  69  Tex.  334;  6  S.  W.  Rep.  417. 

*  Nashua  Sav.  Bank  v.  Lovejoy,  46  N.  W.  Rep.  411. 


304  MEANS    OF    ACQUIRING    JURISDICTION. 

time,  where  the  service  is  defective,  will  sometimes  bar 
the  riffht  to  have  it  set  aside.^ 

In  many  of  the  states,  the  time  withm  which  a  defective 
service  of  process  may  be  attacked  by  a  direct  proceeding 
is  limited.  Under  such  statutes  a  failure  to  question  the 
service  within  the  time  limited  is  a  w^aiver  of  the  right.^ 
But  a  party  may  be  relieved,  after  the  time,  on  the  ground 
of  fraud  in  obtaining  the  service  where  the  notice  is  con- 
structive.^ 

The  right  to  set  aside  a  judgment  on  the  ground  that 
it  was  fraudulently  obtained  may,  however,  be  barred  by 
the  statute  of  limitations.* 

An  acceptance  of  service  of  a  defective  summons,  if  it 
gives  notice  of  the  time  and  place  of  appearance,  will 
waive  the  defects.^  But  it  is  sometimes  provided  that  no 
such  acceptance  or  waiver  shall  be  made  before  the  suit  is 
brought,  and  under  such  a  statute  an  acceptance  or  waiver 
of  service  before  suit  brought  will  not  support  a  judgment 
by  default.^ 

A  statement  by  a  defendant,  to  the  officer  who  holds  the 
process  for  service,  that  he  waives  the  service  of  the  same, 
the  party  not  being  within  the  jurisdiction  of  the  court,  is 
not  a  w^aiver  and  does  not  confer  jurisdiction.^ 

Authority  given  an  agent  to  acknowledge  service  gives 
him  no  authority  to  waive  it.^  But  an  unauthorized  ac- 
ceptance or  waiver  of  service  by  an  agent  may  be  subse- 
quently ratified.^ 

A  waiver,  without  appearance,  must  be  by  some  formal 

»  Martin  v.  Gray,  142  U.  S.  286 ;  12  Sup.  Ct.  Rep.  186 ;  Patmor  v.  Rom- 
baxier,  41  Kan.  295;  21  Pac.  Rep.  284. 

2  Ante,  sec.  22,  pp.  Ill,  115. 

^  Ante,  sec.  22,  p.  115;  Dunlap  v.  Steere,  92  Cal.  344 ;  28  Pac.  Rep.  563. 

*  Hefferman  v.  Howell,  90  Mo.  344 ;  2  S.  W.  Rep.  470. 

5  Gay  V.  Grant,  101  N.  C.  206;  8  S.  E.  Rep.  99. 

«  McAnelly  v.  Ward,  72  Tex.  342 ;  12  S.  W.  Rep.  206. 

'  Wade  r.  Wisenant,  86  Ga.  482;  12  S.  E.  Rep.  645;  Godwin  v.  Monds, 
106  N.  C.  448 ;  10  S.  E.  Rep.  1044. 

8  Clark  r.  Morrison,  85  Ga.  229;  11  S.  E.  Rep.  614. 

9  Clark  V.  Morrison,  80  Ga.  393  ;  6  S.  E.  Rep.  171. 


J 


OF    NEW    PARTIES    AND    AMENDED    PLEADINGS.  305 

renunciation  of  the  service.^  This  may  be  done  by  a 
written  waiver  indorsed  on  the  writ  or  complaint.^ 

The  right  to  be  sued  in  the  county  or  district  of  one's 
residence,  and  to  have  process  served  there,  is  one  that 
may  be  waived.  This  may  be  done  in  other  ways  than  b;y" 
an  appearance.  Thus,  it  has  been  held  that  where  the 
statute  of  a  state  authorizes  foreign  corporations  to  do 
business  therein  on  condition  that  they  submit  to  be  sued 
in  the  courts  of  the  state,  a  corporation,  by  doing  business 
in  the  sate,  waives  its  right  to  contest  the  service  of  sum- 
mons therein  on  the  ground  that  it  is  a  non-resident.^ 

By  appearing  in  a  suit  on  a  judgment,  and  contesting 
the  same  on  the  ground  that  there  was  no  sufficient  service 
upon  him,  a  judgment  defendant  does  not  waive  his  right 
to  maintain  a  writ  of  error  to  reverse  the  same.* 

42.  Of  NEW  PARTIES  AND  AMENDED  PLEADINGS,  As  a  gen- 
eral rule,  where  new  parties  defendant  are  made,  pending 
the  action,  jurisdiction  over  their  persons  must  be  obtained 
in  the  same  way  that  would  have  been  necessary  if  they 
had  been  made  parties  in  the  beginning.* 

If  the  defendants  have  appeared  and  new  parties  plaint- 
iff" have  been  made  by  amendment,  no  new  process  need 
issue.  It  is  enough  to  serve  upon  them  or  their  attorneys 
copies  of  the  amended  pleadings.  But  this  can  not  be 
done  where  there  has  been  no  appearance.^ 

So  where  the  proceeding  is  one  in  a  court  of  equity 
auxiliary  to  an  action  already  pending,  and  in  which  the 
parties  have  been  served,  subpena  may  be  served  on  their 
attorneys.^     And  in  some  of  the  states  where,  under  the 

1  Collier  v.  Morgan's  L.  &  T.  R.  Co.,  41  La.  Ann.  37 ;  5  Sou.  Rep.  537. 

'  Ante,  sec.  39  ;  Carter  v.  Penn,  79  Ga.  747 ;  4  S.  E.  Rep.  896. 

^  Post,  sec.  43;  United  States  i:  American  Bell  Tel.  Co.,  29  Fed.  Rep. 
17,  35. 

*  Eliot  V.  McCormick,  144  Mass.  10;  10  N.  E.  Rep.  705,  710. 

5  Plemmons  v.  Southern  Imp.  Co.,  108  N.  C.  614;  13  S.  E.  Rep.  188. 

®  Powers  V.  Braly,  75  Cal.  237;  17  Pac.  Rep.  197. 

'  Ayite,  sec.  38,  p.  271 ;  Abraham  v.  North  Ger.  F.  Ins.  Co.,  37  Fed. 
Rep.  731. 
20 


306  MEANS    OF    ACQUIRING   JURISDICTION. 

practice,  all  pleadings  are  filed  in  open  court,  in  term  time, 
no  service  of  copies  on  the  opposite  side  is  necessary. 
Parties,  being  in  court,  must  take  notice  of  all  pleadings 
filed. 

If  the  original  defendants  have  been  served,  but  have 
not  appeared,  a  different  question  arises.  If  the  amend- 
ment of  the  complaint  consists  only  in  making  new 
parties  without  in  any  v^ay  changing  the  cause  of  action 
as  against  the  original  defendants,  or  the  amendment  is 
merely  formal  and  a  failure  to  give  additional  notice  could 
work  no  injury,  the  service  of  a  new  summons  is  unneces- 
sary.^ But  where  the  amendment  changes  the  cause  of 
action  against  the  original  defendants,  who  have  not  ap- 
peared, whether  new  parties  are  brought  in  or  not,  a  new 
summons  or  publication  against  them  is  necessary.  The 
summons  served  upon  them,  personally,  or  by  constructive 
service,  gives  the  court  jurisdiction  to  render  judgment 
against  them  in  accordance  with  the  complaint  on  file 
when  service  was  made,  and  the  notice  given ;  and  gives 
no  authority  to  render  judgment  upon  a  materially  differ- 
ent cause  of  action  shown  by  an  amended  pleading  subse- 
quently filed.^  If  notice  by  publication  or  otherwise  is 
partially  made,  when  the  original  defendant  dies,  a  new 
notice  is  necessary,  as  against  his  heirs  or  representatives 
when  substituted.^ 

In  the  absence  of  a  showing  to  the  contrary,  it  will  be 
presumed,  after  a  long  lapse  of  time,  that  the  parties  were 
summoned  to  answer  an  amended  complaint.*  And,  inde- 
pendent of  the  length  of  time  that  has  intervened,  the 
same  presumptions  in  favor  of  the  jurisdiction  of  the 
court  will  prevail  as  in  other  cases,  where  the  record  is 
silent  and  the  attack  is  collateral.^ 

No  new  proces  is  necessary  where  an  additional  orsubsti- 

'  Bray  v.  Creekmore,  109  N.  C.  49 ;  13  S.  E.  Rep.  723. 
^  Ante,  sec.  14,  p.  49;  Stuart  r.  Anderson,  70  Tex.  588;  8  S.  W.Rep.  295. 
5  Ante,  sec.  38,  p.  284 ;  Paget  v.  Pease,  2  N.  Y.  Sup.  335 ;  Reilly  v.  Hart, 
8  N.  Y.  Sup.  717;  Reilly  r.  Hart,  130  N.  Y.  625;  29  N.  E.  Rep.  1099. 
*  Best  r.  Van  Hook,  13  S.  W.  Rep.  119. 
^  Ante,  sec.  25 ;  Crim  v.  Kessing,  89  Cal.  478 ;  26  Pac.  Rep.  1074. 


I 


OF    NEW    PARTIES    AND    AMENDED    PLEADINGS.  307 

tuted  plaintiff  is  brought  in  because  he  becomes  a  party  vol- 
untarily, and  appears  in  the  action  by  the  very  act  of  mak- 
ing the  amendment,  and  the  defendant  is  already  before  the 
court.^  The  rule  is  the  same  where  the  complaint  is  amended 
by  striking  out  the  name  of  a  plaintiff.^  In  some  cases  where 
an  action  is  allowed  to  be  continued  against  the  representa- 
tives or  successors  in  interest  of  a  defendant  upou  his 
death,  it  is  held  that  a  summons  need  not  issue,  but  a 
service  of  the  order  of  continuance  on  the  new  parties, 
with  a  notice  to  appear,  is  sufficient.^  But  the  general 
and  better  rule  is  that  summons  must  issue  and  be  served. 
A  somewhat  different  rule  prevails  where  the  cause  is 
pending  on  writ  of  error  or  appeal,  and  the  death  of  a 
party  to  the  appeal  occurs.  At  common  law  the  death  of 
the  plaintiff  in  error,  after  errors  assigned,  or  of  the  de- 
fendant in  error,  before  or  after  the  assignment  of  errors, 
did  not  abate  the  writ.*  The  proceeding  necessary  to  be 
taken  where  the  death  occurs  at  this  stage  of  the  proceed- 
ings, is  usually  provided  by  statute  in  the  several  states. 
But  the  general  rule  is  that  a  decision,  after  the  death  of  a 
party,  relates  back  to  the  date  of  the  proceeding  in  error, 
and  that  no  substitution  or  notice  to  his  representatives  is 
necessary.  If  the  cause  is  reversed,  and  a  new  trial  or- 
dered, the  revivor,  substitution,  and  notice  to  the  new 
parties  must  take  place  in  the  court  below.^  But  the  ap- 
pellate court  may,  in  its  discretion,  permit  a  substitution 
of  the  representatives  of  a  deceased  party  in  that  court." 
It  has  been  held  that  where  a  party  is  joined  in  an  action 
to  foreclose  a  mortgage,  as  the  wife  of  the  mortgagee  and 
owner,  who  has  not  appeared,  and  upon  the  death  of  the 
latter,  a  supplemental  complaint  is  filed  alleging  her  to  be 

'  Plemmons  v.  Southern  Improvement  Co.,  108  N.  C.  614;  13  S.  E. 
Rep.  188. 

^  Jarrett  v.  Gibbs,  107  N.  C.  303 ;  Murphy  v.  Gibbs,  12  S.  E.  Rep.  272 ; 
Reynolds  v.  Smathers,  87  N.  C.  24. 

'  Lyles  V.  Haskell,  35  S.  C  391 ;  14  S.  E.  Rep.  829. 

*  Black  V.  Hill,  29  Ohio  St.  80. 

^  Williams  v.  Englebrecht,  38  Ohio  St.  96 ;  Prior  v.  Kiso,  96  Mo.  303 ; 
9  S.  W.  Rep.  898. 

^  Black  V.  Hill,  29  Ohio  St.  86;  Foresmaa  v.  Haag,  37  Ohio  St.  143. 


308  MEANS    OF    ACQUIRINO    JURISDICTION. 

an  owner,  as  heir  of  her  husband,  a  new  summons  must 
issue,  although  she  had  appeared  and  answered  the  orig- 
inal complaint.^  But  this  proposition  may  well  be  doubted. 
There  seems  to  be  no  sound  reason  for  holding  that  a  party 
served  with  summons  and  in  court  should  be  entitled  to 
be  served  with  summons  upon  a  supplemental  com- 
plaint, where  such  summons  would  not  be  necessary  in 
case  of  an  amendment  to  a  complaint  changing  the  cause 
of  action.^ 

43.  In  actions  against  corporations. — The  manner  of 
making  service  on  corporations,  and  the  place  where 
service  may  be  made,  differs  very  materially,  in  some 
respects,  from  service  on  private  persons,  as  the  result  of 
statutory  enactments  providing  for  and  regulating  such 
service.  Perhaps  the  most  important  of  these  diflerences 
is  the  one  which  allows  service  to  be  made  on  agents  of 
foreign  corporations,  and  compels  such  corporations  to 
submit  to  the  jurisdiction  of  foreign  courts.  In  many 
of  the  states  a  submission  to  the  jurisdiction  of  its  courts, 
by  foreign  corporations,  is  compelled  by  a  statutory  pro- 
vision allowing  them  to  carry  on  business  within  the  state 
only  on  condition  that  service  of  process  shall  be  had  on 
their  agents  or  some  one  appointed  for  that  purpose  within 
the  state,  and  that  the  trial  of  litigated  questions  shall  be 
had  in  the  state  courts.  The  constitutionality  of  these  and 
similar  statutory  provisions  has  been  vigorously  assailed 
by  the  corporations,  but  the  right  of  the  state  to  impose 
such  conditions  has  been  very  uniformly  sustained,  and  the 
legality  of  such  statutes  upheld.^  But  the  conditions  im- 
posed must  not  be  unreasonable,  or  such  as  to  deprive  the 

1  Martin  v.  Noble,  29  Ind.  216. 

^  1  Work's  Prac.  and  Plead.,  sec.  209.  It  may  be  well  to  notice,  in 
this  connection,  that  under  the  practice  in  Indiana,  the  service  of  a 
copy  of  any  pleading  on  the  opposite  party  is  not  necessary.  The  same 
is  required  to  be  filed  and  the  defendant,  if  he  has  been  served  and  ap- 
peared, must  take  notice  of  it. 

3  Paul  V.  Virginia,  8  Wall.  168;  St.  Clair  v.  Cox,  106  U.  S.  350;  1  Sup. 
Ct.  Rep.  354;  Lafayette  Ins.  Co.  v.  French,  18  How.  404;  Doyle  r.  Conti- 
nental Ins.  Co.,  94  U.  S.  535;  Van  Dresser  v.  Oregon  Ry.  and  Nav.  Co., 


IN    ACTIONS    AGAIJ5ST    CORPORATIONS.  309 

corporation  of  the  opportunity  to  be  heard  before  being 
condemned,  or  inconsistent  with  those  rules  of  public  law 
which  secure  the  jurisdiction  and  authority  of  each  state 
from  encroachments  by  all  others,^  It  must  be  remem- 
bered, also,  that  the  right  to  sue  and  serve  a  corporation 
in  a  state,  other  than  that  of  its  creation,  is  wholly  de- 
pendent upon  statutory  authority  of  the  state  in  which 
such  service  is  made.^  And  upon  the  fact,  also,  that  the 
corporation  was,  at  the  time  suit  was  brought,  doing  busi- 
ness in  the  state.^ 

But  the  right  to  sue  a  corporation  in  a  foreign  state  is 
not  confined  to  actions  growing  out  of  the  business  done 
by  it  in  such  state.  By  entering  the  state  it  becomes  lia- 
ble to  service  in  all  suits  that  might  properly  be  brought 
in  such  state  if  it  were  created  by  and  under  its  laws. 
Therefore,  in  purely  transitory  actions  arising  in  another 
state,  the  corporation  may  be  sued  and  served  in  the  state 

48  Fed.  Rep.  202;  Shafer  Iron  Co.  v.  Iron  Circuit  Judge,  88  Mich.  464; 
50  N.  W.  Rep.  389. 

1  St.  Clair  v.  Cox,  106  U.  S.  350  ;  1  Sup.  Ct.  Rep.  354,  359 ;  Lafayette 
Ins.  Co.  V.  French,  18  How.  404;  Doyle  i'.  Continental  Ins.  Co.,  94  U. 
S.  535. 

^  St.  Clair  v.  Cox,  106  U.  S.  350 ;  1  Sup.  Ct.  Rep.  354 ;  United  States  v. 
American  Bell  Tel.  Co.,  29  Fed.  Rep.  17,  35;  Maxwell  v.  Atchison,  T.  & 
S.  F.  R.  Co.,  34  Fed.  Rep.  286. 

^  St.  Clair  v.  Cox,  106  U.  S.  350 ;  1  Sup.  Ct.  Rep.  354 ;  United  States  v. 
American  Bell  Tel.  Co.  29  Fed.  Rep.  17,  35;  Phillijis  r.  Burlington  Li- 
brary Co.,  141  Pa.  St.  462 ;  21  Atl.  Rep.  640;  Camden  Rolling  xMill  Co.  r. 
Swede  Iron  Co.,  32  N.  J.  L.  15.  In  the  case  of  United  States  v.  Ameri- 
can Bell  Tel.  Co.,  29  Fed.  Rep.  35,  it  was  said:  "  In  the  absence  of  a  vol- 
untary appearance,  three  conditions  must  concur  or  co-exist  in  order  to 
give  the  federal  courts'jurisdiction  in  personam  over  a  corporation  created 
without  the  territorial  limits  of  the  state  in  which  the' court  is  held,  viz: 
1.  It  must  appear,  as  a  matter  of  fact,  that  the  corporation  is  carrying 
on  its  business 'in  such  foreign  state  or  district.  2.  That  such  business 
is  transacted  or  managed  by  some  agent  or  officer  appointed  by  and  rep- 
resenting the  corporation  in  such  state  ;  and  3.  The  existence  of  some 
local  law,  making  such  corporation,  or  foreign  corporations  generally, 
amenable  to  suit  there  as  a  condition,  express  or  implied,  of  doing  bus- 
iness in  the  state." 

This  applies  in  terms  to  federal  courts,  but  it  is  equally  applicable  to 
state  courts. 


310  MEANS    OF    ACQUIRING    JURISDICTION. 

in  which  it  is  doing  business.^  But  such  conditions  or  re- 
strictions can  not  be  imposed  upon  corporations  operating 
under  the  inter-state  commerce  law  enacted  by  congress.^ 
A  corporation  is  not  a  citizen  within  the  meaning  of 
the  constitutional  provision  which  declares  that  the  citi- 
zens of  each  state  shall  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  of  the  several  states.^     And,  there- 

1  Phillips  V.  Burlington  Library  Co.,  141  Pa.  St.  462 ;  21  Atl.  Rep.  640. 

2  United  States  v.  American  Bell  Tel.  Co.,  29  Fed.  Rep.  17,  35. 

^  "  On  the  trial  in  the  court  below,  the  validity  of  the  discriminating 
provisions  of  the  statute  of  Virginia  between  her  own  corporations  and 
corporations  of  other  states  was  assailed.  It  was  contended  that  the 
statute  in  this  particular  was  in  conflict  with  that  clause  of  the  consti- 
tution which  declares  that  '  the  citizens  of  each  state  shall  be  entitled 
to  ap  the  privileges  and  immunities  of  citizens  in  the  several  states,' 
and  the  clause  which  declares  that  congress  shall  have  power  '  to  regu- 
late commerce  with  foreign  nations  and  among  the  several  states.'  The 
same  grounds  are  urged  in  this  court  for  the  reversal  of  the  judgment. 
The  answer  which  readily  occurs  to  the  objection  founded  upon  the  first 
clause  consists  in  the  fact  that  corporations  are  not  citizens  within  its 
meaning.  The  term  '  citizens '  as  there  used  applies  only  to  natural 
persons,  members  of  the  body  politic,  owing  allegiance  to  the  state,  not 
to  artiiicial  persons  created  by  .the  legislature,  and  possessing  only  the 
attributes  which  the  legislature  has  prescribed.  It  is  true  that  it  has 
been  held  that,  where  contracts  or  rights  of  property  are  to  be  enforced 
by  or  against  corporations,  the  courts  of  the  United  States  will,  for  the 
purpose  of  maintaining  jurisdiction,  consider  the  corporation  as  repre- 
senting citizens  of  the  state  under  the  laws  of  which  it  is  created,  and  to 
this  extent  will  treat  a  corporation  as  a  citizen  within  the  clause  of  the 
constitution  extending  the  judicial  power  of  the  United  States  to  con- 
troversies between  citizens  of  different  states.  In  the  early  cases  when 
this  question  of  the  right  of  corporations  to  litigate  in  the  courts  of  the 
United  States  was  considered,  it  was  held  that  the  right  depended  upon 
the  citizenship  of  the  members  of  the  corporation,  and  its  proper  aver- 
ment in  the  pleadings.  Thus,  in  the  case  of  Hope  Ins.  Co.  v.  Boardman, 
5  Cranch,  57,  where  the  company  was  described  in  the  declaration  as 
'  a  company  legally  incorporated  by  the  legislature  of  the  State  of  Rhode 
Island  and  Providence  Plantations,  and  established  at  Providence,'  the 
judgment  was  reversed  because  there  was  no  averment  that  the  mem- 
bers of  the  corporation  were  citizens  of  Rhode  Island,  the  court  hold- 
ing that  an  aggregate  corporation  as  such  was  not  a  citizen  within  the 
meaning  of  the  constitution. 

"  In  later  cases  this  ruling  was  modified,  and  it  was  held  that  the  mem- 
bers of  a  corporation  would  be  presumed  to  be  citizens  of  the  state 
in  which  the  corporation  was  created,  and  where  alone  it  had  any  legal 
existence,  without  any  special  averment  of  such  citizenship,  the  aver- 


IN   ACTIONS   AGANST   CORPORATIONS.  311 

fore,  as  to  corporations  not  controlled  or  protected  by  in- 
ter-state commerce  laws,  a  state  may  impose  such  condi- 
tions as  it  sees  proper  upon  which  such  a  corporation  shall 
he  permitted  to  do  business  within  the  state.^  And  whether 
controlled  by  inter-state  laws  or  not,  a  corporation  may  IJe 
compelled  to  submit  to  service  of  process  within  a  state 
other  than  that  of  its  creation,  but  it  can  not  be  denied  the 
right  to  do  business  within  the  state  to  compel  its  sub- 
mission to  the  jurisdiction  of  the  courts  of  such  state. 

The  right  to  a  trial  within  the  county,  state,  or  district 
of  one's  residence,  is  a  personal  privilege  that  may  be 
waived.^  Therefore,  if  a  corporation  does  business  in  a 
state  where  a  condition  of  doing  business  imposed  by  stat- 
ute is  that  such  corporation  shall  submit  to  be  sued  in  the 
courts  of  the  state,  by  doing  business  in  the  state,  it  waives 
its  right  to  be  sued  in  the  place  of  its  residence.^  And  it 
is  not  necessary  that  the  condition  be  expressed  in  terms 
in  the  statute.  Where  the  provision  authorizing  service 
on  foreign  corporations  doing  business  and  acting  through 
its  officers  or  agents  within  the  state  exists,  there  is  an 
implied  condition  that  it  shall  submit  to  the  jurisdiction 
of  the  courts  of  the  state,  upon  such  service,  while  operat- 
ing within  the  state.* 

But  independent  of  some  statute  imposing  such  a  con- 

ment  of  the  place  of  creation  and  business  of  the  corporation  being 
sufficient ;  and  that  such  presumption  could  not  be  controverted  for  the 
purpose  of  defeating  the  jurisdiction  of  the  court.  Louisville  R..  R.  Co. 
V.  Letson,  2  How.  497;  Marshall  v.  Bait.  &  O.  R.  R.  Co.,  16  How.  314; 
Covington  Drawbridge  Co.  v.  Shepherd,  20  How.  233  (61  U.  S.,  XV., 
898)  ;  Ohio  &  Miss.  R.  R.  Co.  v.  Wheeler,  1  Black,  297  (66  U.  S.,  XVII, 
133). 

"  But  in  no  case  which  has  come  under  our  observation,  either  in  the 
state  or  federal  courts,  has  a  corporation  been  considered  a  citizen  within 
the  meaning  of  that  provision  of  the  constitution  which  declares  that 
the  citizens  of  each  state  shall  be  entitled  to  all  the  privileges  and  im- 
munities of  citizens  of  the  several  states."     Paul  r.  Virginia,  8  Wall.  168. 

1  Ex  parte  Schollenberger,  96  U.  8.  369. 

^  Ante,  sec.  41 ;  United  States  v.  American  Bell  Tel.  Co.,  29  Fed.  Rep.  17. 

'  Ante,  sec.  41 ;  United  States  ?'.  American  Bell  Tel.  Co.,  29  Fed.  Rep. 
17 ;  Railroad  Co.  r.  Koontz,  104  U.  S.  5,  10. 

*  United  States  v.  American  Bell  Tel.  Co.,  29  Fed.  Rep.  17,  35. 


312  MEANS    OF    ACQUIRING    JURISDICTION. 

ditiou,  express  or  implied,  or  some  similar  provision,  by 
which  a  corporation  is  subjected  to  suit  outside  of  the 
state  or  sovereignty  creating  it,  the  corporation  can  not 
be  found  for  the  purposes  of  suit  in  jpersonam  outside  of 
such  territory.^ 

^  In  United  States  v.  American  Bell  Tel.  Co.,  29  Fed.  Rep.  34,  the  court 
said: 

"  For  the  complainants  it  is  insisted  that  under  the  judiciary  acts 
(Rev.  Stat.,  sec.  739)  and  the  act  of  March  3,  1875,  a  corporation  is  to  be 
found  and  is  amenable  to  suit  wherever  it  is  doing  business,  independ- 
ently of  the  existence  of  any  local  law  providing  for  suits  against  it ; 
that  the  mere  fact  of  carrying  on  its  business  in  a  state  other  than  that 
of  its  creation  will  enable  it  to  be  found  there,  irrespective  of  any  law 
or  statute  of  such  state  authorizing  suit  against  it,  or  against  foreign 
corporations  generally,  by  service  upon  their  agent.  No  case  yet  de- 
cided by  the  supreme  court,  either  directly  or  in  principle,  sustains  this 
broad  proposition.  The  supreme  court  has  not  yet  gone  to  the  extent 
of  holding  that  a  corporation  can  be  found,  under  the  judiciary  acts, 
for  personal  suit,  beyond  the  limits  of  the  state  creating  or  adopting  it 
eo  nomine,  irrespective  of  the  local  law.  In  every  decision  of  the  su- 
preme court,  asserting  or  maintaining  the  jurisdiction  of  either  the  fed- 
eral or  state  courts  over  corporations  created  or  located  outside  of  the 
territorial  limits  of  the  state  or  district  in  which  suit  was  brought 
against  them,  commencing  with  Lafayette  Ins.  Co.  v.  French,  18  How. 
404,  which  made  the  first  exception  to  the  rule  of  the  common  law  that 
a  corporation  could  not  migrate,  had  no  legal  existence,  and  could  not 
be  found,  for  the  purpose  of  suit,  beyond  the  limits  of  the  sovereignty  cre- 
ating it,  there  has  existed  a  local  statute  expressly  or  impliedly  providing 
for  or  authorizing  such  ^uit  as  a  condition  of  the  corporations  doing  busi- 
ness therein,  together  with  the  further  fact  that  the  foreign  corporation 
actually  carried  on  its  business,  or  some  substantial  part  thereof,  in  such 
state  by  and  through  the  instrumentality  of  agents  appointed  by  itself. 
Except  where  the  law  of  the  state  in  which  it  carries  on  business  and 
is  sued,  imposes,  expressly  or  by  implication,  a  liability  to  suit  there  as 
a  condition  of  its  doing  business  in  the  state,  a  foreign  corporation  can 
not  be  found,  for  the  purpose  of  a  suit  in  persotiam,  outside  of  the  juris- 
diction or  sovereignty  creating  it.  Without  undertaking  to  review  the 
authorities  on  the  subject  of  a  corporation's  liability  to  suit  in  a  state 
or  district  other  than  that  of  its  creation,  we  think  the  decisions  of  the 
supreme  court  have  settled  and  established  the  proposition  that,  in  the 
absence  of  a  voluntary  appearance,  three  conditions  must  concur  or  co- 
exist in  order  to  give  the  federal  courts  jurisdiction  in  personam  over  a 
corporation  created  without  the  territorial  limits  of  the  state  in  which 
the  court  is  held,  viz.:  (1)  It  must  appear  as  a  matter  of  fact  that  the 
corporation  is  carrying  on  its  business  in  such  foreign  state  or  district ; 
(2)  that  such  business  is  transacted  or  managed  by  some  agent  or  officer 


IN    ACTIONS    AGAINST    CORPORATIONS.  313 

The  statutes  authorizing  service  on  persons  acting  for  or 
representing  the  corporation  difter  somewhat,  but  the  gen- 
eral principles  affecting  all  of  them  are  substantially  the 
same.  In  most  of  them,  service  is  authorized  to  be  made 
on  some  officer  or  officers  or  general  agent  or  manager  of 
the  corporation.^  And  in  the  absence  of  any  officer  or 
agent,  service  is  sometimes  authorized  to  be  made  on  a 
stockholder  of  the  corporation.'  Some  of  the  statutes 
go  much  further,  and  authorize  service  on  any  person 
in  the  employ  of,  or  having  in  charge  property  of, 
the  corporation.^  In  others,  the  right  to  serve  on  an 
officer  or  agent  is  allowed  only  when  the  corporation 
has  property  within  the  state  or  the  cause  of  action 
arose  therein.^  And  in  others,  provision  Is  made  requiring 
the  corporation  to  designate  some  person  upon  whom 
service  may  be  made.*     The  appointment  of  such  person 

appointed  by  and  representing  the  corporation  in  such  state ;  and 
(3)  the  existence  of  some  local  law  making  such  corporation,  or  foreign 
corjiorations  generally,  amenable  to  suit  there  as  a  condition,  express  or 
implied,  of  doing  business  in  the  state.  When  the  local  law,  expressly 
or  In'  comity,  permits  foreign  corporations  to  do  business  in  the  state  ; 
when  it  also  provides  for  suit  against  them  in  a  reasonable  and  proper 
manner,  and  within  the  just  limits  of  the  state's  power  and  authority; 
and  when  a  foreign  corporation  thereafter  enters  the  state,  and  transacts 
its  corporate  business  by  means  of  resident  agents  coming  within  the 
terms  of  the  local  statute,  it  may  be  found,  and  is  liable  to  suit  there  in 
either  the  state  or  federal  courts,  by  service  of  process  on  such  agent. 
Lafayette  Ins.  Co.  v.  French,  18  How.  404;  Railroad  Co.  r.  Harris,  12 
AVall.  65;  Ex  parte  SchoUenberger,  96  U.  S.  369 ;  Railroad  Co.  v.  Koontz, 
104  U.  S.  5;  St.  Clair  v.  Cox,  106  U.  S.  350:  S.  C,  1  Sup.  Ct.  Rep.  354; 
New  England  Mut.  Life  Ins.  Co.  v.  Woodworth,  111  IT.  S.  138;  S.  C,  4 
Sup.  Ct.  Rep.  364;  Boston  Electric  Co.  v.  Electric  Gas-Lighting  Co.,  23 
Fed.  Rep.  839.  The  underlying  principle  on  which  these  decisions  rest 
is  that  the  state  may  impose  conditions,  not  in  conflict  with  the  laws  and 
constitution  of  the  United  States,  on  the  transaction  of  business  in  its  ter- 
ritory by  corporations  chartered  elsewhere,  or  exclude  them  altogether, 
or  revoke  permission  or  license  already  given."  Carpenter  v.  Westing- 
house  Air  Brake  Co.,  32  Fed.  Rep.  434. 

'  Comet  Consolidated  :Min.  Co.  v.  Frost,  15  Colo.  310;  25  Pac.  Rep.  -506. 

^  Saunders  r.  Sioux  City  Nursery  Co.,  6  Utah,  431 ;  24  Pac.  Rep.  532. 

'  Hester  r.  Rasin  Fertilizer  Co.,  33  S.  Car.  609;  12  S.  E.  Rep.  563. 

*  Colorado  Iron  Works  v.  Sierra  Min.  Co.,  15  Colo.  499;  25  Pac.  Rep. 
325  ;  Ex  parte  SchoUenberger,  96  U.  S.  369 ;  Gibson  v.  Manufacturers  F. 
&  M.  Ins.  Co.,  144  Mass.  81 ;  10  N.  E.  Rep.  729. 


314  MEANS    OF    ACQUIRING    JURISDICTION. 

is  irrevocable  so  long  as  the  corporation  continues  to  do 
business  in  the  state,  except  where  some  one  else  is  desig- 
nated upon  whom  to  make  service.^  And  if  no  person  is 
so  designated,  service  is  sometimes  authorized  to  be  made 
on  some  officer  of  the  state  or  other  person  designated  in 
the  statute. 

A  person  designated  by  a  corporation  as  one  upon 
whom  service  may  be  made  has  no  power  to  waive  serv- 
ice.^ 

Sometime  the  right  of  service  is  confined  to  persons  em- 
ployed in  the  agency  in  or  through  which  the  business  re- 
sulting in  the  litigation  was  transacted.  Under  such  stat- 
ute, service  can  not  be  made  on  another  agent,  or  his 
employee,  not  connected  with  the  transaction  in  litiga- 
tion.^ 

Where  provision  is  made  for  service  on  one  officer  or 
agent  only  where  another  officer  or  agent  can  not  be 
found,  a  service  on  the  former  is  good  only  where  the  lat- 
ter can  not  be  found,  and  the  proof  of  service  must  show 
the  fact.*  But  if  service  on  either  of  several  named  offi- 
cers is  authorized,  without  giving  precedence  to  any,  serv- 
ice on  any  one  of  them  is  sufficient.^  And  a  defect  in 
serving  the  summons  on  the  wrong  officer  is  waived  by  a 
general  appearance  in  the  action.® 

Where  service  on  a  particular  officer  of  a  municipal 
corporation  is  required,  and  such  officer  has  resigned, 
service  can  not,  for  that  reason,  be  made  on  any  other  of- 
ficer of  the  corporation.^ 

'  Gibson  r.  Manufacturers  F.  &  M.  Ins.  Co.,  144  Mass.  81 ;  10  N.  E. 
Rep.  729. 

2  Farmer  v.  National  Life  Ass'n,  50  Fed.  Rep.  829. 

^  State  Ins.  Co.  v.  Granger,  62  la.  272;  17  N.  W.  Rep.  504;  Winney  v. 
Sandwich  Mfg  Co.,  50  N.  W.  Rep.  565. 

*  Ante,  sees.  37,  39,  pp.  263,  265. 

5  Comet  Consolidated  Min.  Co.  r.  Frost.  15  Colo.  310 ;  25  Pac.  Rep.  506. 

6  Ante,  sees.  13,  34;  Dugan  v.  Mayor,  etc.,  70  Mich.  1 ;  16  Atl.  Rep.  501. 
'  "  The  question,  then,  is  reduced  to  this:   Whether,  in  case  the  mayor 

has  resigned,  and  there  is  no  presiding  officer  of  the  board  of  street  com- 
missioners (a  body  which  seems  to  take  the  place  of  the  common  council 
of  the  city  for  many  purpos^),  service  of  process  on  the  city  clerk,  and 
on  a  conspicuous  member  of  the  board,  is  sufficient.     If  the  common 


IN   ACTIONS   AGAINST    CORPORATIONS.  315 

At  common  law,  the  rule  would  be  difierent.  The  court 
could  designate  some  person  on  whom  service  might  be 
made.     But  where   the  person  upon  whom   service  may 

law  (which  is  common  reason  in  matters  of  justice)  were  permitted  to 
prevail,  there  would  be  no  difficulty.  In  the  absence  of  any  head  officer, ' 
the  court  could  direct  service  to  be  made  on  such  official  persons  as  it 
might  deem  sufficient.  But  when  a  statute  intervenes,  and  displaces 
the  common  law,  we  are  brought  to  a  question  of  words,  and  are  bound 
to  take  the  words  of  the  statute  as  law.  The  cases  are  numerous  which 
decide  that  where  a  particular  method  of  serving  process  is  pointed  out 
by  statute,  that  method  must  be  followed,  and  the  rule  is  especially  ex- 
acting in  reference  to  corporations.  Kibbe  v.  Benson,  17  Wall.  624; 
Alexandria  v.  Fairfax,  95  U.  S.  774;  Settlemier  v.  Sullivan,  97  U.  S.  444; 
Evans  v.  Railway  Co.,  14  Mees.  &  W.  142 ;  Walton  v.  Salvage  Co.,  16 
Mees.  &  W.  438;  Brydolf  i'.  Wolf,  32  Iowa,  509 ;  Hoen  v.  Railroad  Co.,  64 
Mo.  561 ;  Insurance  Co.  v.  Fuller,  81  Pa.  St.  398.  The  courts  of  Wiscon- 
sin strictly  adhere  to  this  rule.  Congar  v.  Railroad  Co.,  17  Wis.  478,  485; 
City  of  Watertonw  v.  Robinson,  59  Wis.  513;  17  N.  W.  Rep.  542;  City  of 
Watertown  v.  Robinson,  69  Wis.  230 ;  34  N.  W.  Rep.  139.  The  two  cases 
last  cited  related  to  the  charter  now  under  consideration.  In  the  first 
case,  service  was  made  upon  the  city  clerk  and  upon  the  chairman  o^ 
the  board  of  street  commissioners  while  the  board  was  in  session,  in  the 
absence  of  the  mayor,  who  could  not  be  found  after  diligent  search. 
The  court,  after  referring  to  the  provisions  of  the  charter  and  the  re- 
vised statute  on  the  subject,  say :  '  The  question  whether  the  revised 
statutes  control  as  to  the  manner  of  service  is  not  a  material  inquiry 
here,  because  both  the  charter  and  general  provision  require  the  serv- 
ices to  be  made  upon  the  mayor,  but  no  service  was  made  upon  that  of- 
ficer, as  appeared  by  the  return  of  the  sherifi".  The  principle  is  too  ele- 
mentary to  need  discussion,  that  a  court  can  only  acquire  jurisdiction 
of  a  party,  where  there  is  no  appearance,  by  the  service  of  process  in 
the  manner  prescribed  by  law.'  In  the  last  case  (decided  in  1887),  serv- 
ice was  made  in  the  same  manner  as  in  the  previous  one,  and  the  court 
say:  'When  the  statute  prescribes  a  particular  mode  of  service,  that 
mode  must  be  followed  ita  lex  scripta  est.  There  is  no  chance  to  specu- 
late whether  some  other  mode  will  not  answer  as  well.  .  .  .  This 
has  been  too  often  held  by  this  court  to  require  further  citations.  .  .  . 
When  a  statute  designates  a  particular  officer  to  whom  the  process 
may  be  delivered,  and  with  whom  it  may  be  left,  as  service  upon  the 
corporation,  no  other  officer  or  person  can  be  substituted  in  his  place. 
.  .  .  The  designation  of  one  parti(;ular  officer  upon  whom  service  may 
be  made  excludes  all  others.  .  .  .  The  temporary  inconvenience  aris- 
ing from  a  vacancy  in  the  office  of  mayor  affords  no  good  reason  for  a 
substitution  of  some  other  officer  in  his  place,  upon  whom  service  could 
be  made,  by  unwarrantable  construction  not  contemplated  by  the  stat- 
ute.' It  is  unnecessary  to  look  further  to  see  what  the  law  of  Wiscon- 
sin is  on  this  subject.     It  is  perfectly  clear  that,  by  that  law,  the  service 


316  MEANS    OF   ACQUIRING   JURISDICTION. 

or  must  be  made  is  provided  by  statute,  the  designation 
of  the  person  excludes  the  right  to  serve  on  any  other 
person,  by  order  of  the  court  or  otherwise.^ 

Where  upon  a  vacancy  in  one  office  another  designated 
officer  is  vested  with  the  powers  and  duties  of  the  office 
vacated,  service  may  be  made  upon  the  officer  thus  per- 
forming the  duties,  although  service  on  him  would  other- 
wise be  insufficient.^  But  a  vacancy  in  the  office  will  not 
be  presumed  from  a  return  that  the  officer  is  not  found. 

As  the  manner  of  service  provided  by  statutes  of  the 
kind  under  consideration,  is  exceptional,  the  provisions  of 
the  statute  must  be  strictly  complied  with.*  Therefore, 
although  service  on  an  officer  or  agent,  not  authorized  by 
the  statute,  would  be  just  as  efficacious  as  the  one  men- 
tioned therein,  such  service  will  not  confer  jurisdiction.^ 

The  term  station  agent  means  the  agent  locally  in  charge 
of  the  station  or  depot  of  a  railroad  company,  and  who 
has  general  charge  at  the  place  where  he  acts,  and  a  re- 
turn of  service  on  a  "  commercial  agent "  is  insufficient 
where  service  is  authorized  to  be  made  on  "  any  station 
agent  or  ticket  agent."  * 

The  return  of  the  officer  to  the  effect  that  service  was 
made  on  the  required  officer,  or  agent,  is  not  conclusive  as 
to  the  fact  of  the  person  served  being  such  officer  or 
agent.  Whether  the  persoa  served  was  such  officer  or 
agect,  is  a  question  of  fact  to  be  determined  by  the 
courl;.® 

Where  service  is  required  to  be  made  on  two  officers  of 

oi  process  in  the  present  case  was  ineffective  and  void."  Amy  v.  City 
of  Waterfcown,  130  U.  S.  301 ;  9  Sup.  Ct.  Rep.  530,  535. 

1  Amy  V.  City  of  Watertown,  130  U.  S.  301 ;  9  Sup.  Ct.  Rep.  530. 

2  Worts  V.  City  Oi  Watertown,  16  Fed.  Rep.  534. 

3  City  of  WatertoWu  v.  Robinson,  59  Wis.  513;  17  N.  W.  Rep.  542. 

*  City  of  Detroit  v.  Wabash  &  St.  L.  &  P.  Ry.  Co.,  63  Mich.  712;  30  N. 
W.  Rep.  321. 

^  City  of  Detroit  v.  Wabash  &  St.  L.  &  P.  Ry.  Co.,  63  Mich.  712 ;  30  N. 
W.  Rep.  321;  O'Brien  v.  Shaws  Flat,  etc.,  Co.,  10  Cal.  343;  Great  West 
Min.  Co.  V.  Woodmas,  12  Col.  46;  20  Pac.  Rep.  771. 

«  Hester  v.  Rasin  Fertilizer  Co.,  33  S.  Car.  609;  12  S.  £.  Rep.  563;  For- 
rest V.  Union  Pac.  R.  Co.,  47  Fed.  Rep.  1 ;  ante,  sec.  22,  p.  116. 


IN    ACTIONS    AGAINST    CORPORATIONS.  317 

a  corporation,  a  service  on  one  of  them,  only,  confers  no 
jurisdiction.' 

The  question  frequently  arises  in  the  decided  cases  as  to 
the  meaning  of  the  terms  "general  agent"  or  "  managing 
agent"  as  used  in  many  of  the  statutes.  It  is  not  a  ques- 
tion that  can  be  determined  by  any  fixed  definition,  or 
rule,  applicable  to  all  cases.  Each  case  must  depend  very 
materially  upon  the  character  of  the  business  carried  on 
by  the  corporation  and  the  nature  of  the  work  to  be  done, 
or  business  to  be  transacted,  by  the  agent.  In  some  of 
the  cases,  the  question  is  made  to  turn  upon  the  well 
known  difi*erence  between  a  general  and  special  agent 
where  the  service  is  required  to  be  made  on  a  general 
agent.^ 

The  authorities  are  pretty  well  agreed  that  whether  the 
term  agent,  simply,  or  general  agent,  or  managing  agent, 
is  used,  service  can  not  be  had  on  every  employee  who 
is,  in  a  certain  sense,  an  agent  of  the  corporation.  It 
must  be  upon  some  one  having  the  management  or  con- 
trol of  the  business  of  the  corporation,  or  some  depart- 
ment or  branch  of  its  business.^  And,  where  the  term 
general  or  managing  agent  is  used,  the  person  served  must 
be  one  having  a  general  supervision  over  the  afiairs  of  the 
corporation,  or  some  department  of  its  business,  within 
the  department  or  in  the  district  or  county  where  the 
service  is  made;  one  invested  with  general  power  involv- 
ing the  exercise  of  judgment  and  discretion.* 

1  Mariner  r.  Town  of  AVaterloo,  75  Wis.  438;  44  N.  W.  Rep.  512. 

'^  Great  "West  Mining  Co.  v.  Woodmas,  etc.,  Mining  Co.,  12  Colo.  46 ;  20 
Pac.  Rep.  771. 

^  Kennedy  v.  The  Hibernian  Sav.  &  Loan  So.,  38  Cal.  151 ;  Upper  Mis- 
sissippi Trans.  Co.  v.  AVhitaker,  16  Wis.  220;  Chambers  v.  Bridge  Manu- 
factory, 16  Kan.  270;  Maxwell  v.  Atchison,  T.  &  S.  F.  R.  Co.,  34  Fed. 
Rep.  286. 

*  Reddington  v.  Mariposa  L.  &  M.  Co.,  26  Hun,  405  ;  Upper  Missis- 
sippi Trans.  Co.  r.  Whitaker,  16  Wis.  220;  State  Ins.  Co.  v.  AVaterhouse, 
78  la.  674:  43  N.  W.  Rep.  611 ;  Winslow  v.  Staten  Island,  etc.,  Co.,  4  N. 
Y.  Sup.  169;  Barrett  v.  American  Tel.  &  Tel.  Co.,  10  N.  Y.  Sup.  138; 
Tuchband  r.  Chicago  &  A.  R.  Co.,  115  N.  Y.  437 ;  22  N.  E.  Rep.  360;  Ru- 
land  V.  Canfield  Pub.  Co.,  10  N.  Y.  Sup.  913. 


318  MEANS    OF    ACQUIRING    JURISDICTION. 

It  is  not  necessary  that  the  person  served  should  be 
known  and  designated  as  managing  agent,  if  his  duties 
constitute  him  such  an  agent.  Therefore,  service  on  a 
general  superintendent  has  been  held  to  be  sufficient 
under  a  statute  requiring  service  to  be  made  on  a  man- 
aging agent.^ 

It  is  not  always  necessary  that  the  officer  served  shall 
be  at  the  head  of  the  department  he  represents.  He  may 
be  a  superintendent,  although  subject  to  the  orders  of  a 
superior  officer  belonging  to  his  department.* 

As  to  what  will  constitute  an  agent,  or  other  represent- 
ative of  a  corporation  upon  whom  service  may  be  made, 
see  further  the  authorities  cited  in  the  note.^ 

The  service  must  be  made  on  the  person  holding  the 
office  designated,  although  some  one  else  may  be  perform- 
ing the  duties  of  the  office.  Service  on  the  latter  is  not 
sufficient.* 

Nor  can  service  required  to  be  made  on  an  officer  be 
made  on  an  assistant  known  and  designated  as  such  assist- 
ant officer  and  performing  the  duties  of  the  office,  even 
when  the  officer  is  a  non-resident.'^ 

It  is  held  that,  as  a  foreign  corporation  has  no  place  of 
residence  within  the  state  in  which  it  is  doing  business,  it 
may  be  sued  in  any  county  in  the  state  without  reference 
to  its  principal  place  of  business  within  the  state.^ 

The  general  rule  is  that  the  power  of  an  officer  of  a 
municipal   corporation,   to   bind   it    by   his   acts,  is   con- 

1  Barrett  v.  American  Tel.  &  Tel.  Co.,  10  N.  Y.  Sup.  138. 

^  St.  Louis  &  S.  F.  Ry.  Co.  v.  Deford,  38  Kan.  299;  16  Pac.  Rep.  442. 

*  Gottschalk  Co.  v.  Distilling,  etc.,  Co.,  50  Fed.  Rep.  681 ;  St.  Clair  r. 
Cox,  106  U.  S.  359;  1  Sup.  Ct.  Rep.  354;  Burgess  v.  C.  Aultman  &  Co., 
80  Wis.  292 ;  50  N.  W.  Rep.  175 ;  Shafer  Iron  Co.  v.  Iron  Circuit  Judge, 
88  Mich.  464;  50  N.  W.  Rep.  389;  Philip  v.  Cover!ant  Mut.,  etc.,  Ass'n, 
62  la.  633 ;  17  N.  W.  Rep.  903 ;  Kansas  City,  etc.,  R.  Co.  v.  Daughtry, 
138  U.  S.  298 ;  11  Sup.  Ct.  Rep.  306 ;  Southern  Ins.  Co.  v.  Wolverton 
Hardware  Co.,  19  S.  W.  Rep.  615 ;  Berlin  Iron  Bridge  Co.  v.  Norton,  17 
Atl.  Rep.  1079 ;  Mulhearn  v.  Press  Pub.  Co.,  53  N.  J.  L.  150 ;  20  Atl.  Rep. 
760;  McCulloh  v.  Paillard,  etc.,  Co.,  14  N.  Y.  Sup.  491. 

*  Chambers  v.  Bridge  Manufactory,  16  Kan.  270,  276. 

*  Winslow  V.  Staten  Island,  etc.,  Co.,  4  N.  Y.  Sup.  169. 

6  Thomas  v.  Placerville  G.  Q.  M.  Co.,  65  Cal.  600 ;  4  Pac.  Rep.  641. 


IN    ACTIONS    AGAINST    CORPORATIONS.  319 

fined  to  and  can  not  be  exercised  beyond  the  territorial 
limits  of  the  corporation,  and  that  such  officer  is  not, 
therefore,  an  agent  of  the  corporation  elsewhere,  and  can 
not  be  served  with  process,  as  such  agent,  outside  of  the 
county  in  which  such  corporation  is  situated.*  And,  in^ 
order  to  render  service  on  an  officer  of  a  private  corpora- 
tion, in  a  foreign  state,  sufficient,  he  must,  at  the  time,  be 
acting  in  his  representative  capacity.  If  he  is  in  the  state 
on  business  not  connected  with  the  corporation  he  repre- 
sents, when  at  home,  the  service  is  not  binding.^  But  this 
rule  is  guarded  against  in  some  of  the  states  by  an  express 
statutory  provision  authorizing  service  on  any  officer  or 
agent  within  the  state,  whether  there  on  the  business  of 
the  corporation  or  not.^ 

Of  course  it  is  not  always  necessary  to  serve  on  an 
officer  or  agent.  Service  is  sometimes  authorized  by  stat- 
ute to  be  made  on  a  mere  clerk.  If  the  statute  provides 
for  it,  such  a  service  is  sufficient.  But  w^here  service  upon 
a  clerk  of  a  particular  agency,  or  in  a  certain  place,  is  re- 
quired, the  party  served  must,  so  far  as  such  statute  is 
concerned,  come  within  its  requirements.* 

The  rule  as  to  the  necessity  of  a  compliance  with  the 
statute  in  making  service  is  the  same  whether  the  cor- 
poration is  a  foreign  or  a  domestic  corporation.* 

A  question  sometimes  arises  as  to  what  will  amount  to 
a  doing  business  within  a  state  sufficient  to  bring  a  foreign 
corporation  within  these  statutes.  It  would  seem  to  be 
necessary  that  the  corporation  enter,  regularly,  into  busi- 
ness of  some  kind,  and  that  a  single  act  of  purchase  within 
a  state  or  a  single  contract  not  in  the  line  of  its  own  busi- 
ness, but  in  the  way  of  purchase  for  its  own  use,  would 

'  Pack  V.  Greenbush  Tp.,  62  Mich.  122;  28  N.  W.  Rep.  746. 

''  Newell  V.  Great  Western  Ry.  Co.,  19  Mich.  336 ;  St.  Clair  v.  Cox,  106 
U.  S.  350;  1  Sup.  Ct.  Rep.  354;  Golden  v.  The  Morning  News,  42  Fed. 
Rep.  112;  Bentliff  v.  London,  etc.,  Co.,  44  Fed.  Rep.  667;  Reifsnider  i\ 
American  Imp.  Pub.  Co.,  45  Fed.  Rep.  433. 

'  Shafer  Iron  Co.  v.  Iron  Circuit  Judge,  88  Mich.  464 ;  50  N.  W.  Rep. 
389. 

*  State  Ins.  Co.  v.  Waterhouse,  78  la.  674 ;  43  N.  W.  Rep.  611. 

*  Ruland  v.  Canfield  Pnb.  Co.,  10  N.  Y.  Sup.  913. 


320  MEANS    OF    ACQUIRING    JURISDICTION. 

not  bring  it  within  the  statute.^  But  if  the  contract  en- 
tered into,  or  business  done,  is  such  as  the  corporation  is 
authorized  to  carry  on  as  a"  part  of  its  regular  business,  no 
matter  whether  the  business  done  consists  of  one  transac- 
tion or  many,  the  statute  must  apply.  For  example,  if  a 
corporation,  chartered  for  the  purpose  of  carrying  on  an 
insurance  business,  should  issue  a  policy  of  insurance  in  a 
state  having  such  a  statute,  it  would,  undoubtedly,  become 
subject  to  the  provisions  of  the  statute.  But  the  business 
must  be  done  by  the  corporation.  If  it  furnishes  goods  to 
another,  to  be  sold  by  him  on  his  own  account,  he  is  not 
an  agent  and  the  corporation  is  not  doing  business  within 
the  state.^  And  if  the  business  transacted  should  be  the 
purchase  of  machinery  or  some  other  property  or  com- 
modity to  be  used  by  it  in  another  state  as  a  means  of 
carrying  on  its  business  there,  the  statute  would  not  apply.^ 
The  presence  of  the  officers  of  a  corporation  in  a  state 
other  than  that  of  its  creation,  does  not  change  the  place  of 
its  habitation  so  as  to  authorize  service  in  the  former  state, 
although  such  officers   may  have  brought  into  the  state 

'  Colorado  Iron  Works  v.  Sierra  Grande  Min.  Co.,  15  Colo.  499 ;  25 
Pac.  Rep.  325 ;  Maxwell  v.  Atchison  T.  &  S.  F.  R.  Co.,  34  Fed.  Rep.  286. 

2  Gottschalk  Co.  v.  Distilling,  etc.,  Co.,  50  Fed.  Rep.  681. 

^  "  True,  in  a  limited  and  technical  sense,  almost  any  business  trans- 
action, no  matter  how  trivial,  made  by  a  corporation,  whether  in  its 
own  or  an  adjacent  state,  the  buying  of  goods  by  a  domestic  mercantile, 
corporation  in  New  York  for  the  purpose  of  sale  and  business  here,  or 
any  transaction  of  that  kind,  may  be  deemed  the  doing  of  business  in 
New  York.  A  sale  and  delivery  of  goods  in  Wyoming  or  Nebraska  by 
a  domestic  corporation  of  this  state  might  technically  be  termed  doing 
business  in  those  states ;  but  such  accidental  or  incidental  transactions 
were  not,  in  our  view,  contemplated  by  nor  within  the  intention  of  the 
legislature  in  the  section  under  consideration.  Nor  ia  this  case  can  the 
purchase  of  machinery  to  be  manufactured  here,  transported  to,  set  up 
and  operated  in  New  Mexico,  nor  the  selling  of  ores  mined  and  pro- 
duced in  New  Mexico,  and  shipped  here  to  a  market,  be  regarded  as 
doing  business  in  this  state,  as  contemplated  in  such  section."  Colorado 
Iron  Works  y.  Sierra  Grande  Min.  Co.,  15  Colo.  499;  25  Pac.  Rep.  325, 
327;  St.  Louis  Wire  Mill  Co.  v.  Consolidated,  etc.,  Co.,  32  Fed.  Rep.  802. 
See  to  the  contrary,  Klopp  v.  Crescent  City  Guarantee,  etc.,  Co.,  52  N, 
W.  Rep.  819. 


IN   ACTIONS    AGAINST    CORPORATIONS.  321 

property  of  the  corporation  for  a  temporary  purpose  not 
connected  with  or  a  part  of  its  regular  business.^ 

Service  by  publication  may  be  had  against  foreign  cor- 
porations in  a  proper  case  where  personal  service  can  not 
be  made,  the  same  as  in  case  of  private  persons.^  But  not 
where  some  representative  of  the  corporation  is  within  the 
state  and  can  be  served.^ 

It  has  been  held  that  where  service  on  a  municipal  cor- 
poration is  required  to  be  made  by  leaving  a  certitied  copy 
with  the  proper  officer,  a  service  by  reading  the  writ  to 
such  officer,  although  irregular,  is  sufficient  to  uphold  a 
judgment.* 

In  the  federal  courts  formerly  a  corporation  might  be 
served  in  the  district  of  its  residence,  or  in  the  district 
where  found,  but  under  the  present  statute  the  corporation 
can  only  be  served  and  required  to  answer  in  the  district 
of  its  residence,  which  is  the  place  of  its  incorporation, 
except  where  the  action  may  be  brought  in  the  state  of 
which  the  plaintiff  is  a  resident  and  the  defendant  served 
there.  A  corporation  is  treated  as  an  inhabitant  of  the 
state  under  the  laws  of  which  it  is  created,  and  a  citizen 
thereof  the  same  as  a  natural  person,  as  respects  this  ques- 
tion of  jurisdiction.^ 

So  it  is  held  that  a  corporation  incorporated  in  one  state 
only,  and  having  a  usual  place  of  business  in  another 
state,  can  not  be  sued  in  a  federal  court  in  the  latter  state, 
by  a  citizen  of  a  different  state.^ 

'  Carpenter  v.  Westinghouse  Air  Brake  Co.,  32  Fed.  Rep.  434;  Max- 
well V.  Atchison  T.  &  S.  F.  R.  Co.,  34  Fed.  Rep.  286. 

''United  States  Elec.  Light  Co.  v.  Martin,  43  Kan.  526;  23  Pac.  Rep. 
586. 

»  Winney  v.  Sandwich  Mf  g  Co.,  50  N.  W.  Rep.  565. 

*  Cicero  Township  v.  Shirk,  24  N.  E.  Rep.  166.  But  see  on  this  sub- 
ject sees.  37,  39,  ante. 

*  Ex  parte  Shaw,  145  U.  S.  444 ;  12  Sup.  Ct.  Rep.  935  ;  Railroad  Co.  v. 
Koontz,  104  IT.  S.  5,  12  ;  United  States  v.  Southern  Pac.  R.  Co.,  49  Fed. 
Rep.  297. 

"As  to  natural  persons,  therefore,  it  can  not  be  doubted  that  the  ef- 
fect of  this  act,  read  in  the  light  of  earlier  acts  upon  the  same  subject, 
21 


322  MEANS    OF    ACQUIRING    JURISDICTION. 

Where  the  jurisdiction  of  the  court  is  founded  solely 
upon  the  fact  that  the  parties  are  citizens  of  different 
states,  the  suit  may  be  brought  in  the  state  in  which  either 
the  plaintiff"  or  defendant  resides.^  But  the  right  to  main- 
tain the  action  in  a  state  other  than  that  of  the  creation 
of  the  corporation,  is  dependent  upon  some  officer,  agent, 
or  other  person  upon  whom  service  may  be  made,  being 
within  the  jurisdiction  of  the  court,  where  the  action  is 
personal,  or  the  presence  of  property  therein  which  will 
authorize  proceedings  against  such  property  without  per- 
sonal service.^  And  sometimes  the  right  to  serve  on  cer- 
tain agents  or  employes  is  dependent  upon  the  presence, 
within  the  jurisdiction  of  the  court,  of  property  belong- 
ing to  the  corporation.* 

In  the  federal  courts,  the  laws  of  the  state  in  which  the 
court  is  held,  providing  for  the  service  of  process,  control 
in  actions  at  law  where  there  is  no  act  of  congress  on  the 
subject.^     Therefore,  under  the  former  acts  of  congress, 

and  of  the  judicial  construction  thereof,  is  that  the  phrase  'district  of 
the  residence  of '  a  person  is  equivalent  to  '  district  whereoi  he  is  an  in- 
habitant,' and  can  not  be  construed  as  giving  jurisdiction,  by  reason  of 
citizenship,  to  a  circuit  court  held  in  a  state  of  which  neither  party  is  a 
citizen,  but,  on  the  contrary,  restricts  the  jurisdiction  to  the  district  in 
which  one  of  the  parties  resides  within  the  state  of  which  he  is  a  citi- 
zen ;  and  that  this  act,  therefore,  having  taken  away  the  alternative, 
permitted  in  the  earlier  acts,  of  suing  a  person  in  the  district  '  in  which 
he  shall  be  found,'  requires  any  suit,  the  jurisdiction  of  which  isfounde  I 
only  on  its  being  between  citizens  of  different  states,  to  be  brought  in 
the  state  of  which  one  is  a  citizen,  and  in  the  district  therein  of  which 
he  is  an  inhabitant  and  resident.  In  the  case  of  a  corporation,  the  reasons 
are,  to  say  the  least,  quite  as  strong  for  holding  tha^  it  can  sue  and  be 
sued  only  in  the  state  and  district  in  which  it  has  been  incorporated,  or 
in  the  state  of  which  the  other  party  is  a  citizen."  Ex  parte  Shaw,  145 
U.  S.  444,  12  Sup.  Ct.  Rep.  935,  937. 

'  McCormick  Harvesting,  etc.,  Co.  v.  Walthers,  134  U.  S.  41 ;  10  Sup. 
Ct.  Rep.  485;  Ex  parte  Shaw,  145  U.  S.  444;  12  Sup.  Ct.  Rep.  935; 
United  States  v.  Southern  Pac.  R.  Co.,  49  Fed.  Rep.  297. 

''  United  States  i-.  American  Bell  Tel.  Co.,  29  Fed.  Rep.  17,  34;  Tuch- 
band  v.  Chicago  &  A.  R.  Co.,  5  N.  Y.  Sup.  493;  115  N.  Y.  437;  22  N.  E. 
Rep.  360. 

•^  Tuchband  v.  Chicago  &  A.  R.  Co.,  115  N.  Y.  437;  22  N.  E.  Rep.  360. 

'■  Van  Dresser  r.  Oregon  Ry.  and  Nav.  Co.,  48  Fed.  Rep.  202,  205;  Ex 
parte  Schollenberger,  96  U.  S.  369. 


IN    ACTIONS    AGAINST    CORPORATIONS.  323 

authorizing  a  foreign  corporation  to  be  sued  where  found, 
as  well  as  in  the  state  of  its  creation,  it  was  held  that  a 
service  on  its  agent  in  the  state  in  which  it  was  doing  busi- 
ness, as  provided  by  the  statute  of  such  state,  was  suffi- 
cient.^ But  this  can  not  be  so  under  the  present  act  of- 
congress  limiting  the  jurisdiction  of  the  federal  courts  to 
inhabitants  of  the  district  except  in  specified  cases.  The 
jurisdiction  given  the  state  courts  by  state  statutes  can 
not  be  extended  to  the  federal  courts  in  opposition  to  an 
act  of  congress  expressly  denying  such  jurisdiction.^ 

Where  a  corporation  is  created  by  act  of  congress,  an 
entirely  different  rule  prevails.  In  such  case  the  corpora- 
tion is  an  inhabitant  of  the  United  States,  and  not  of  the 
state  in  which  its  principal  place  of  business  is  located  and 
its  seal  kept.  It  may,  therefore,  be  sued  and  served  in 
any  state  or  district  where  it  is  doing  business,  and  has  an 
officer  or  agent  upon  whom  service  can  be  made.^  And 
the  limitation  of  the  jurisdiction  of  the  federal  courts 
above  referred  to  does  not  apply  to  maritime  and  admiralty 
causes  in  which  a  corporation  of  another  state  may  be 
proceeded  against  in  any  district  in  which  service  may  be 
had.* 

The  fact  that  a  corporation  created  by  the  laws  of  one 

^  Ex  parte  Schollenberger,  96  U.  S.  369 ;  Van  Dresser  v.  Oregon  Ry. 
and  Nav.  Co.,  48  Fed.  Rep.  202,  205. 

•^  Ex  parte  Shaw,  145  U.  S.  444  ;  12  Sup.  Ct.  Rep.  935.  But  see  on  this 
subject  the  case  of  United  States  c.  Southern  Pacific  R.  Co.,  49  Fed.  Rep. 
297,  in  which  it  was  held  by  Mr.  Justice  Harlan,  that  while  a  corpora- 
tion is  a  "  citizen  "  only  of  the  state  under  whose  laws  it  was  organized, 
yet  a  railroad  or  telegraph  company  chartered  either  by  the  United 
States,  or  by  a  state,  is  an  "  inhabitant  "  of  any  state  in  which  it  operates 
its  lines  and  maintains  offices  for  the  transaction  of  business.  Neither 
the  reasoning  nor  the  conclusion  reached  in  this  case,  can  be  reconciled 
with  Ex  parte  Shaw,  above  cited.  But  it  must  be  admitted  that  the 
grounds  of  the  conclusion  reached  are  very  strongly  stated,  and  show 
the  injustice  of  the  act  of  congress  as  construed  by  the  supreme  court 
in  the  later  case.  It  may  be  that  the  rule  stated  as  applicable  to  rail- 
road and  telegraph  companies  may  be  upheld,  and  distinguished  from 
other  corporations,  but  the  grounds  upon  which  such  a  distinction  can 
be  supported  are  not  now  apparent. 

'  Van  Dresser  v.  Oregon  Ry.  and  Nav.  Co.,  48  Fed.  Rep.  202. 

*  In  re  Louisville  Underwriters,  134  U.  S.  488;  10  Sup.  Ct.  Rep.  587. 


324  MEANS    OF    ACQUIRING   JURISDICTION. 

state,  does  business  in  another  state,  does  not  change  the 
place  of  its  citizenship.^ 

44.  Where  cross-complaint  is  filed. — If  new  parties  are 
brought  in  by  a  cross-complaint,  they  must  be  served  in 
the  same  manner  as  if  they  were  proceeded  against  by 
original  complaint.  But  if  the  cross-complaint  is  against 
other  plaintiffs  or  defendants,  already  before  the  court, 
service  may  be  made  on  their  attorneys  by  leaving  with 
such  attorneys  a  copy  of  such  complaint,  as  in  case  of 
other  pleadings  in  the  action,  or  in  such  other  manner  as 
may  be  provided  by  statute. 

In  some  of  the  states,  service  of  pleadings  after  the 
-complaint  need  not  be  made.  Therefore,  where  a  party  is 
already  before  the  court,  he  must  take  notice  of  all  plead- 
ings filed  in  the  action  without  service.^  But  where  a  new 
and  original  cause  of  action,  between  defendants  jointly 
sued,  is  set  up  by  a  cross-complaint  filed  by  one  of  such 
defendants  against  the  other,  and  the  pleadings  are  not  re- 
quired to  be  served,  it  is  held  that  a  summons  must  issue.^ 

Where,  under  such  a  practice,  the  matters  set  up  in  the 
cross-complaint  are  alleged  in  the  original  complaint,  no 
summons  is  necessary  on  the  former,  although  the  defend- 
ant against  whom  the  cross-complaint  is  directed  has  suf- 
fered a  default  before  it  is  filed.^ 

Where  all  pleadings  are  required  to  be  served  on  the 
parties  or  their  attorneys,  a  different  rule  prevails.  Under 
such  a  practice,  there  must  be  service,  but  not  of  a  sum- 
mons. The  service  of  a  copy  of  the  cross-complaint  on 
the  parties  before  the  court,  by  service  of  the  summons 
on  the  original  complaint,  and  against  whom  the  cross- 
complaint  is  directed,  is  sufficient.^ 

1  Eailroad  Co.  v.  Koontz,  104  U.  S,  5,  12 ;  St.  Clair  v.  Cox,  106  U.  S. 
350;  1  Sup.  Ct.  Rep.  354. 

^  Pattison  v.  Vaughan,  40  Ind.  253. 

3  1  Works  Ind.  Pr.  &  PI.,  sec.  208 ;  Joyce  v.  Whitney,  57  Ind.  550  ;  State 
V.  Ennis,  74  Ind.  17. 

*  1  Works  Pr.  &  PI.,  sec.  208 ;  Pattison  v.  Vaughan,  40  Ind.  353 ;  Bevier 
V.  Kahn,  111  Ind.  200;  12  N.  E.  Rep.  169. 

5  White  V.  Patton,  87  Cal.  151. 


AVHERE    CROSS-COMPLAINT    IS    FILED.  325 

But  where  a  stranger  to  the  cause,  as  originally  brought, 
comes  in  by  leave  of  court  and  sets  up  a  cause  of  action 
against  one  of  the  original  parties,  summons  must  issue 
in  his  behalf  against  the  party  he  is  proceeding  against.^ 

Under  the  equity  practice  in  the  federal  courts,  a  crosst, 
bill  is  regarded  as  auxiliary  to  the  original  bill,  and  service 
may  be  made  on  the  attorneys  of  the  parties  against 
whom  it  is  directed,  although  such  party  may  be  a  non- 
resident.^ 

1  Fowler  v.  Lewis,  14  8.  E.  Rep.  447,  455, 
*  Gregory  v.  Pike,  29  Fed.  Rep.  588. 


326  VENUE. 


CHAPTER  IV. 

VENUE. 

45.  Commencement  of  action  in  wrong  place  and  its  eflfects. 

46.  Grounds  for  change  of  venue. 

47.  Application  for  change  and  its  effects. 

48.  Other  necessary  proceedings  to  procure  transfer. 

49.  Waiver  as  to  venue. 

50.  Counter  motion  to  retain  case. 

51.  Order  for  change  and  its  effects. 

52.  Remanding  cause. 

45.  Commencement  of  action  in  wrong  place  and  its 
EFFECTS. — The  subject  of  territorial  jurisdiction,  generally, 
has  been  considered.^  It  is  the  purpose  of  this  chapter  to 
discuss  the  effect  on  the  jurisdiction  of  the  court  of  bring- 
ing an  action  in  the  wrong  place,  and  the  right  of  a  party 
to  change  the  venue  on  that  and  other  accounts,  and  the 
effect  of  proceedings  for  a  change  upon  the  jurisdiction 
of  the  court. 

Statutes  usually  provide  specifically  where  all  actions 
belonging  to  certain  designated  classes  shall  be  brought. 
At  common  law,  the  venue  must  be  laid  in  the  proper 
county  in  local  actions,  or  the  court  is  without  jurisdic- 
tion. But  this  rule  has  been  materially  modified  in  many 
if  not  most  of  the  states,  by  statutory  provisions  to  the 
effect  that,  where  the  action  is  brought  in  the  wrong 
county,  the  defendant  must,  within  a  designated  time, 
demand  that  the  same  be  transferred  to  the  proper  county, 
or  the  court  in  which  it  is  brought  shall  have  jurisdic- 
tion.^   Therefore,  the  effects  resulting  from  the  commence- 

'  Ante,  sec.  15. 

""  Woodward  v.  Hanchett,  52  Wis.  482  ;  9  N.  W.  Rep.  468  ;  Fletcher  v. 
Stowell,  28  Pac.  Rep.  326;  Houck  ?;.  Lasher,  17  How.  Pr.  520;  West  v. 
Walker,  77  Wis.  557 ;  46  N.  W.  Rep.  819 ;  Blackford  v.  Lehigh  Val.  R. 
Co.,  53  N.  J.  L.  56  ;  20  Atl.  Rep.  735. 


COMMENCEMENT    OF    ACTION    IN    WRONG    PLACE,  ETC.        327 

meut  of  an  action  in  the  wrong  county  are  very  materially 
modified  by  the  rule,  considered  elsewhere,  that  where  the 
question  is  as  to  the  jurisdiction  of  the  person,  a  party 
may  submit  his  person  to  the  jurisdiction  of  the  court  by 
appearing  therein  and  proceeding  in  the  action.^ 

But  the  mere  appearance  to  the  action,  as  we  shall  see 
directly,  does  not  always  amount  to  such  a  submission  to 
the  jurisdiction  of  the  court  as  will  prevent  the  party 
from  insisting  upon  the  removal  of  the  cause  to  the  proper 
county.^ 

Usually  the  time  when  the  application  for  a  change  to 
the  proper  county  shall  be  made  is  fixed  by  statute,  and 
must  be  made  within  the  time  fixed  or  the  right  is  lost.^ 
And  if  the  party  is  properly  served  with  process  he  can 
not  avoid  the  legal  effect  of  a  judgment  against  him,  in  a 
wrong  county  in  the  state,  by  failing  to  appear.  He  is 
bound  to  appear  and  ask  for  a  removal  of  the  cause  to  the 
proper  county  or  the  judgment  will  be  binding  upon 
him.*  Or  question  the  jurisdiction  in  some  other  recog- 
nized mode.^ 

If  there  is  no  statute  providing  that  a  change  of  venue 
may  be  had  on  this  ground,,  and  limiting  the  party  to  such 
remedy,  the  jurisdiction  of  the  court  may  be  attacked  by 
plea  in  abatement,  or  motion  to  dismiss,  and  the  party  can 
not  be  driven  to  an  application  for  a  change  of  venue.^ 

But  in  this  connection  the  distinction  between  transi- 
tory actions,  which  affect  the  question  of  jurisdiction  of 
the  person,  and  actions  i7i  rem,  in  which  the  place  of 
trial  affects  the  jurisdiction  of  the  subject-matter,  is  im- 
portant to  be  remembered.  In  the  former,  jurisdic- 
tion may  be  given  by  consent  or  appearance."  In  the 
latter,  appearance  or  consent  can  not  give  jurisdiction.^ 
In  the  former,  the  party  may  relieve  himself  from  a  trial 
and  judgment  against  him  by  timely  objection,  and  if  he 

i^n<€,  sees.  ]3,  15,  43.  ^  Post,  sec.  49.        ^  Post,  sees.  47,  49. 

*  Territory  v.  Judge  of  District  Court,  5  Dak.  275  ;  38  N.  W.  Rep.  439. 

*  Ante,  sec.  22;  Drainage  Com'rs  v.  Giffin,  134  111.  330;.  25  N.  E.  Rep. 
995. 

®  Ante,  sec.  22.  ^  Ante,  sec.  13.  *  Ante,  sec.  12. 


328  VENUE. 

does  not  the  judgment  is  valid.'  In  the  latter,  the  court 
has  no  jurisdiction,  even  where  the  party  appears  and  con- 
sents that  it  may  act,  and  any  judgment  it  may  render 
with  the  parties  all  before  it  is  absolutely  void.^  But  as 
to  the  place  of  trial  of  local  actions,  within  the  state,  the 
legislature  may  change  this  rule  and  put  the  two  kinds 
of  actions  on  the  same  footing.^  And  in  some  of  the  states 
this  has  been  done. 

Under  statutes  which  require  an  application  for  a  change 
to  be  made  in  local  actions,  and  provide  that  if  this  is  not 
done  the  court  shall  have  power  to  proceed  with  the  action, 
the  same  rule  of  waiver  applies  as  in  purely  personal  or 
transitory  actions.*  And  it  is  generally  held  that  the  stat- 
ute confining  the  party  to  his  remedy  by  motion  for  a 
change  of  venue,  general  in  its  terms,  is  applicable  alike 
to  local  as  well  as  to  transitory  actions.^ 

^  Post,  sec.  49.  ''  Ante,  sec.  26. 

3  Spalding  v.  Kelly,  66  Mich.  693 ;  33  N.  W.  Eep.  803. 

*  Post,  sec.  49 ;  Woodward  r.  Hanchett,  52  Wis.  482 ;  9  N.  W.  Rep. 
468. 

*  Woodward  v.  Hanchett,  52  Wis.  482;  9  N.  W.  Rep.  468;  Fletcher  v. 
Stowell,  28  Pac.  Rep.  326 ;  Houck  v.  Lasher,  17  How.  Prac.  520 ;  Terri- 
tory V.  Judge  of  District  Court,  5  Dak.  275  ;  38  N.  W.  Rep.  439  ;  West  v. 
Walker,  77  Wis.  557 ;  46  N.  W.  Rep.  819. 

In  Woodward  v.  Hanchett,  supra,  the  court  said  : 

"  This  section  was  clearly  intended  to  relate  to  all  kinds  of  actions, 
and  is  applicable  as  well  to  actions  which  are  local  in  their  nature  as  to 
actions  which  are  by  statute  made  local  by  reason  of  the  residence  of 
the  defendant  or  other  cause,  and  under  its  provisions  any  action  may, 
notwithstanding  its  local  character,  be  tried  in  the  county  designated 
in  the  summons  or  complaint,  unless  the  defendant  causes  the  same  to 
be  changed  in  the  manner  pointed  out  in  said  section.  The  change 
made  by  the  revision  as  well  as  by  the  code,  in  respect  to  the  place  of 
trial,  is  a  radical  one,  and  under  its  provisions  no  objection  can  now  be 
taken  either  by  pleading  or  on  the  trial  that  the  action  is  not  brought 
in  the  proper  county.  Such  objection  is  one  that  must  be  taken  in  lim- 
ine, and  if  not  then  taken  is  waived.  Pereles  v.  Albert,  12  Wis.  666; 
Lane  v.  Burdick,  17  Wis.  92.  The  provisions  of  chapter  243,  Laws  of 
1862,  were  not  embodied  in  the  Revised  Statutes  of  1878,  and  that 
chapter  was  repealed.  The  section  above  cited  has  provided  two 
methods  of  changing  the  place  of  trial  to  the  proper  county  when  the 
plaintiff  has  brought  his  action  in  the  wrong  county.  The  first  method 
is  by  demand  of  the  defendant  and  the  written  consent  of  the  plaintiff 
made  and  given  within  specified  times,  and  wlien  thf^  demand  is  prop- 


COMMENCEMENT    OF    ACTION    IN    WRONG    PLACE,    ETC.       329 

In  other  cases,  however,  it  is  held,  and  it  is  believed 
upon  better  and  sounder  reasons,  that  such  statutes  do  not 
apply  to  actions  purely  in  rem} 

erly  made  and  the  consent  properly  given,  the  place  of  trial  is  changed 
without  any  further  proceeding,  and  thereafter  the  case  proceeds  as  it 
brought  originally  in  the  county  designated  in  the  consent  of  the 
plaintiff." 

In  the  case  of  Fletcher  v.  Stowell,  supra,  a  distinction  is  made  between 
"  venue  "  as  used  with  reference  to  the  place  of  commencing  the  ac- 
tion and  the  "  place  of  trial  "  as  used  in  the  code  ;  and  it  is  maintained 
that  it  was  not  the  intention  of  the  code  to  fix  the  place  where  actions 
must  be  commenced,  but  the  place  where  they  must  be  tried. 

In  Houck  V.  Lasher,  17  How.  Pr.  522,  the  court  said  : 

"  At  the  common  law,  actions  in  respect  to  the  place  of  trial  were 
either  local  or  transitory.  In  a  local  action  a  mistake  in  the  venue  was 
a  fatal  error.  In  a  transitory  action,  the  plaintiff  was  under  no  restraint 
in  selecting  the  place  of  trial.  But  under  the  code  this  distinction  does 
not  exist.  No  action  is  strictly  local  in  the  sense  in  which  the  term  is 
used  at  the  common  law,  and  no  action  except  perhaps  the  actions  men- 
tioned in  the  125th  section  of  the  code,  in  which  all  the  parties  are  non- 
residents of  the  state,  is  strictly  transitory.  With  the  exception  already 
noticed,  each  action  has  soine  county  in  which  it  is  properly  triable. 
Sometimes  this  is  determined  by  the  situation  of  the  subject  of  the  ac- 
tion. These  actions  are  specified  in  the  123d  section  of  the  code. 
Sometimes  it  is  determined  by  the  place  where  the  cause  of  action  arose. 
Such  actions  are  specified  in  the  124th  section  of  the  code.  In  other 
cases  the  proper  county  is  determined  by  the  residence  of  the  parties. 
These  cases  are  mentioned  in  the  125th  section. 

"  And  yet  every  action  is  so  far  transitory  that  the  plaintiff  may,  with 
impunity,  lay  his  venue  in  any  county  in  the  state.  If  the  proper 
county  has  not  been  selected,  the  defendant  has  the  right  to  have  the 
place  of  trial  changed.  But  to  secure  this  right  two  things  are  neces- 
sary: First,  he  must,  within  a  Umited  time,  make  the  demand  pre- 
scribed by  the  126th  section  of  the  code,  and  then,  the  demand  having 
been  made,  unless  the  change  be  made  by  consent  of  parties,  an  order 
of  the  court  directing  the  change  must  be  obtained.  Unless  both 
these  requirements  are  complied  with,  the  plaintiff  may  bring  his  ac- 
tion to  trial  in  the  county  selected  by  him  for  that  purpose."  See  also 
to  the  same  effect,  Moore  v.  Gardner,  5  How.  Pr.  243 ;  but  to  the  con- 
trary, under  the  code,  see  Mason  v.  Brown,  6  How.  Pr.  481. 

1  Orcutt  r.  Hanson,  71  la.  514;  32  N.  W.  Rep.  482;  Iowa  Loan  and 
Trust  Co.  V.  Dory,  63  la.  459;  19  N.  W.  Rep.  391. 

In  Orcutt  V.  Hanson,  supra,  the  court  said  :  "  6.  Code,  section  2589, 
contains  the  following  provision :  '  If  a  suit  be  brought  in  the  wrong 
county,  it  may  then  be  prosecuted  to  a  termination,  unless  the  defend- 
ant before  answer  demand  a  change  of  the  place  of  trial  to  tbe  proper 
county,  in  which  case  the  court  shall  order  the  same  at  the  costs  of  the 
plaintiff.     .     .     .'     If  this  provision  be  applicable  to  the  case  before  us, 


330  VENUE. 

And  in  some  of  the  states  it  is  held  that  such  a  statute, 
general  in  its  terms,  applies  to  transitory  actions  only  and 
not  to  local  actions,  whether  strictly  actions  in  rem  or  not.^ 
But  it  is  held  in  others  that  the  distinction  must  be  con- 
fined to  actions  purely  in  rem,  where  personal  service  on 
the  defendant  is  not  necessary,  and  no  judgment  can  be 
taken  against  him ;  and  can  not  be  extended  to  such  as 
are  termed  quasi  in  rem  which  are  prosecuted  against  the 
person  and  where  a  seizure  of  the  property  is  unnecessary.^ 

defendants,  having  made  no  motion  to  change  the  venue  as  contem- 
plated in  the  statute,  can  not  now  complain  of  the  judgment  rendered 
in  the  case.  But,  in  our  opinion,  the  section  is  not  to  be  applied  to  the 
case,  for  the  reason  that  the  circuit  court  of  Cedar  county  had  no  juris- 
diction of  the  subject-matter  of  the  action,  which,  we  think,  we  have 
above  shown.  To  authorize  a  court  to  act  in  an  action  in  rem,  it  must 
have  jurisdiction  of  the  subject-matter  of  the  suit,  and,  in  the  action  in 
personam,  it  must  have  jurisdiction  of  the  person  of  the  defendant.  In 
personal  actions,  the  section  just  quoted,  and  those  preceding  it,  give 
to  the  court  of  the  '  wrong  county  '  jurisdiction  of  the  person  of  defend- 
ants who  were  served  with  notice ;  but,  in  actions  in  rem,  the  court  of 
the  '  wrong  county  '  acquires  no  jurisdiction  of  the  subject-matter,  un- 
der the  statutes  and  the  decisions  of  this  court.  Now,  what  order  may 
a  court  make  in  an  action  in  rem  wherein  it  has  no  jurisdiction  of  the 
subject-matter  thereof?  None  whatever,  except  to  dismiss  it,  or  strike  it 
from  the  docket.  As  the  court  lacks  jurisdiction  of  the  subject-matter, 
it  can  make  no  order  whatever  affecting  the  right  to  the  rem.  These 
views  are  based  upon  the  most  familiar  elementary  principles,  which 
demand  no  authorities  in  their  support  in  order  to  assure  tlie  assent  of 
the  legal  mind." 

1  McLeod  V.  Ellis,  2  Wash.  St.  117  ;  26  Pac.  Rep.  76. 

=^  Fresno  Nat.  Bank  r.  Superior  Court,  83  Cal.  491,  500;  24  Pac.  Rep. 
157  ;  Territory  v.  District  Court,  5  Dak.  275 ;  38  N.  W.  Rep.  439. 

In  Fresno  Nat.  Bank  v.  Superior  Court,  supra,  the  court  said  :  "  Nor 
is  there  any  thing  in  the  distinction  between  transitory  actions  and 
local  actions  which  should  affect  the  application  of  sections  5136  and 
5198  of  the  United  States  Revised  Statutes,  or  of  the  principles  an- 
nounced in  Clafin  v.  Houseman,  93  U.  S.  130,  except,  perhaps,  when 
local  actions  are  purely  m  rem,  and  therefore  require  no  actual  service 
of  process  upon  any  person,  natural  or  artificial.  Actions  to  enforce 
mortgages  and  other  liens  upon  real  property,  and  actions  to  condemn 
real  property,  for  public  use,  are  actions  against  the  owners  of  property, 
of  whose  persons  the  court  must  acquire  jurisdiction  by  actual  service 
of  process  before  it  can  render  any  judgment  affecting  their  property 
rights.  Besides,  in  the  United  States  generally,  and  particularly  in  this 
state,  the  distinction  between  local  and  transitory  actions,  so  far  as  any 
consequence  attends  it,  depends  entirely  upon  statutory  law,  which  is 


COMMENCEMENT    OF    ACTION    IN    WRONG    PLACE,  ETC.        331 

At  common  law  and  under  the  codes,  independent  of 
such  statutory  provisions,  the  rule  is  the  other  way  and 
the  jurisdiction  of  the  court  may,  without  an  application 
to  change  the  venue,  be  attacked  at  any  time.^ 

In  some  of  the  states  certain  cases  are  made  local  by^ 
the  constitution.^  And  it  is  held  that,  under  such  a  con- 
stitutional provision,  a  motion  for  a  change  of  venue  is 
not  the  proper  remedy  in  such  cases,  because  the  court, 
not  having  jurisdiction  of  the  subject-matter,  can  have  no 
jurisdiction  to  pass  upon  a  motion  to  change  the  venue  or 
to  make  any  order  with  reference  to  it.^  But  there  is  no 
apparent  reason  why  the  same  rule  should  not  apply 
where  actions  are  made  local  by  statute,  except  that  the 
constitutional  provisions  can  not  be  modified  by  statutory 
provisions  such  as  have  been  referred  to  above.  So  long 
as  statutes  exist  requiring  actions  afiecting  the  title  to 
real  estate  to  be  tried  in  the  county  where  the  land  is  situ- 
ated, and  no  provision  is  made  limiting  the  remedy  to  an 
application  for  a  change  of  venue  in  case  the  action  is 
brought  in  the  wrong  county,  such  statutes  must  be  the 
same  in  legal  effect  as  like  constitutional  provisions. 

Statutes  changing  this  rule  must  be  regarded  as  modifi- 
cations of  statutory  provisions  fixing  the  places  where 
actions  must  be  commenced  and  tried,  and  as  conferring 
jurisdiction  in  cases  where  an  action  is   brought  in  the 

not  necessarily  nor  actually  uniform  throughout  the  state,  and  does  not 
coincide  with  or  depend  upon  the  distinction  between  actions  in  rem  and 
actions  in  personam.  Then,  again,  all  those  large  classes  of  actions  which 
are  said  to  be  quasi  in  rem  require  jurisdiction  of  the  individual  persons 
interested,  and  most  of  them  are  prosecuted  without  any  seizure  of  the 
thing." 

1  Ante,  sees.  11,  22 ;  Campbell  v.  West,  86  Cal.  197;  24  Pac.  Rep.  1000; 
Fletcher  v.  Stowell,  28  Pac.  Rep.  326 ;  McLaughlin  v.  McCrory,  55  Ark. 
442;  18  S.  W.  Rep.  762;  Norfolk  &  W.  R.  Co.  v.  Postal  Tel.,  etc.,  Co.,  14 
S.  E.  Rep.  689 ;  McDonal  v.  Asay,  27  N.  E.  Rep.  929 ;  State  v.  Crevier,  50 
N.  J.  L.  351 ;  13  Atl.  Rep.  28  ;  Heckscher  v.  City  of  Philadelphia,  9  Atl. 
Rep.  281. 

^  Fritts  V.  Camp,  94  Cal.  393 ;  29  Pac.  Rep.  869 ;  Urton  i.  Woolsey,  87 
Cal.  38  ;  25  Pac.  Rep.  154. 

'  Fritts  V.  Camp,  94  Cal.  393;  29  Pac.  Rep.  867;  Vrton  r.  Woolsey,  87 
Cal.  38;  25  Pac.  Rep.  154. 


332  VENUE. 

wrong  county  and  a  removal  is  not  asked  for.^  And  if  the 
proper  application  for  a  change  of  venue  is  made,  the 
court  is  thereby  deprived  of  all  further  jurisdiction,  except 
to  make  the  necessary  order  transferring  the  cause,  for  the 
reason  that  the  condition  upon  which  jurisdiction  is  con- 
ferred, viz.,  that  no  application  for  a  change  shall  be  made, 
no  longer  exists.^ 

But  under  statutes  such  as  have  been  mentioned,  it  is 
generally  held  that  the  right  to  have  an  action  brought 
in  the  proper  county,  in  local  as  well  as  transitory  actions, 
is  a  personal  privilege,  and  may  be  waived,  and  in  some 
cases  this  is  held  without  reference  to  such  statutes  as 
have  just  been  referred  to.^  And  that,  by  a  failure  to 
plead  in  abatement,  the  objection  to  the  jurisdiction  is 
waived.*  In  other  words,  according  to  these  cases,  the 
common-law  distinction  between  local  and  transitory 
actions,  so  far  as  it  affects  the  place  of  commencing  actions 
within  the  state,  and  the  right  to  object  to  the  jurisdiction 
of  the  court  on  that  ground,  has  ceased  to  exist  under  the 
codes.* 

If  a  local  action  is  brought  against  several  defendants 
in  the  wrong  county,  any  one  of  them  may,  on  his  sepa- 
rate application,  have  the  venue  changed  to  the  proper 
county.'^  But  the  party  making  the  application  must 
have  a  personal  interest  in  the  result  of  the  action.^ 

In  some  of  the  cases,  in  which  it  is  held  that  the  remedy 
is  by  application  for  a  change  of  venue,  the  right  is  de- 
clared to  be  absolute.^  But  this  is  so  in  every  case  in 
which  the  action  is  commenced  in  the  wrong  county.® 

1  Territory  v.  Judge  District  Court,  5  Dak.  275 ;  38  N.  W.  Rep.  439. 

="  Smith  V.  People,  29  Pac.  Rep.  924 ;  post,  sec.  47. 

'  Walker  v.  Stroud,  6  S.  W.  Rep.  202 ;  Watts  v.  White,  13  Cal.  321, 324. 

*  Walker  v.  Stroud,  6  S.  W.  Rep.  202 ;  Houck  v.  Lasher,  17  How.  Pr. 
520. 

s  Houck  V.  Lasher,  17  How.  Pr.  520. 

«  O'Neil  V.  O'Neil,  54  Cal.  187. 

'  Omaha,  etc.,  Ry.  Co.  v.  O'Neill,  81  la.  463;  46  N.  W.  Rep.  1100. 

8  Watts  V.  White,  13  Cal.  321,  324;  Smith  v.  People,  29  Pac.  Rep.  924. 

5  Post,  sec.  50 ;  Meiners  v.  Loeb,  64  Wis.  343 ;  Kleiners  v.  Loeb,  25  N. 
W.  Rep.  216;  Veeder  v.  Baker,  83  N.  Y.  156. 


COMMENCEMENT    OF    ACTION   IN    WRONG    PLACE,  ETC.        333 

In  cases  made  local  by  the  constitution,  it  is  held  that, 
notwithstanding  the  constitution  requires  that  actions 
afiecting  the  title  to  real  estate  must  be  commenced  in  the 
county  where  the  land  is  situated,  they  may  be  tried  in 
another  county,  and  that  therefore  a  statute  authorizing  a 
change  of  venue  in  such  cases  in  not  unconstitutional.^ 

Cases  in  which  the  jurisdiction  of  the  court  depends 
entirely  upon  the  location  of  the  subject-matter  within  a 
county  in  the  state,  must  not  be  confounded  with  cases  in 
rem  purely,  where  the  court  can  have  no  jurisdiction  over 
the  subject-matter  anywhere. 

A  court  may  have  jurisdiction  to  pass  upon  the  title  to 
real  estate  or  to  foreclose  mortgages  generally.  Therefore 
it  has  jurisdiction  of  such  a  subject-matter.  And  the  sole 
question  under  the  statutes  we  are  considering  is  whether 
a  court,  having  such  jurisdiction,  shall  try  the  question  of 
title,  in  the  particular  case,  out  of  the  county  where  the 
land  lies.  The  decisions  are  to  the  effect  that  the  only 
question  in  such  a  case  is  as  to  the  place  where  it  shall  be 
tried,  and  that  this  is  a  matter  of  personal  privilege  that 
may  be  waived. 

But  if  the  subject-matter  is  one  over  which  the  court 
can  not  have  jurisdiction  anywhere  in  the  state,  a  different 
rule  applies.  In  such  case,  jurisdiction  can  not  be  given 
by  consent  or  waiver,  and  any  judgment  rendered  by  the 
court  is  absolutely  void.^  However,  a  court  may  have 
jurisdiction  to  render  a  decree  against  the  person,  which 
will,  if  enforced,  affect  the  title  to  land  w^hen  the  land 
itself  is  not  within  the  jurisdiction  of  the  court,  and  the 
court  has  no  power  to  render  a  decree  directly  affecting 
the  title.^ 

If  the  statute  authorizes  a  change  to  another  county, 
w^here  the  action  is  brought  in  the  wrong  county,  it  is 
error  for  the  court  to  dismiss  the  action  on  the  defendant's 

^  Hancock  v.  Burton,  61  Cal.  70. 

2  Ante,  sees.  12, 14,  26. 

^Carpenter  v.  Strange,  141  U.  S.  87;  11  Sup.  Ct.  Rep.  960;  Davis  v. 
Headley,  22  N.  J.  Eq.  115;  Burnley  v.  Stevenson,  24  Ohio  St.  474;  15 
Am.  Kep.  621. 


334  VENUE. 

motion,  or  plea,  as  against  a  counter  motion  by  the  plaintiff 
to  transfer  the  cause  to  the  proper  county.' 

Where  a  superior  court  takes  jurisdiction  by  appeal  from 
an  inferior  court,  the  former  has  been  held  not  to  have  ju- 
risdiction to  make  an  order  changing  the  venue  to  another 
county,  where  the  constitution  gives  such  courts  appellate 
jurisdiction  from  inferior  courts  of  their  respective  coun- 
ties.^ The  same  rule  has  been  applied  where  a  cause  has 
been  transferred  to  a  superior  court,  because  the  same  is 
beyond  the  jurisdiction  of  the  inferior  court.^ 

Under  a  statute  authorizing  non-residents  to  be  sued  in 
any  county  where  found,  the  application  for  a  change  of 
venue,  where  the  action  is  brought  in  some  other  county, 
must  be  made.  The  party  can  not  have  the  action  dis- 
missed on  the  ground  that  he  was  sued  in  one  county  and 
served  in  another.^ 

46.  Grounds  for  change  of  venue. — The  grounds  for 
changes  of  venue  are  purely  statutory.  Without  some 
statute  authorizing  the  change,  some  other  remedy  must 
be  resorted  to  where  the  action  is  commenced  in  the 
wrong  court.^ 

Different  causes  for  changes  of  venue  are  provided  for 
in  the  different  states.  Of  these  the  following  may  be 
mentioned : 

a.  That  the  action  has  been  commenced  in  the  wrong 
county  or  district.^ 

h.  Disqualification  of  the  judge  of  the  court  before 
whom  the  action  is  pending.^ 

c.  Bias  or  prejudice  of  the  judge  or  of  the  people  of  the 
place  where  the  action  is  pending  that  will  prevent  a  fair 
and  impartial  trial. 

'  Geiser  Manuf  g  Co.  v.  Sanders,  26  8.  Car.  70 ;  IS.  E.  Rep.  159. 

*  Gross  V.  Superior  Court,  71  Cal.  382 ;  12  Pac.  Rep.  264. 
'  Powell  V.  Sutro,  21  Pac.  Rep.  436. 

*  Marquardt  v.  Thompson,  78  la.  158;  42  N.  W.  Rep.  634. 

*  Commercial  Nat'l  Bank  v.  Davidson,  18  Or.  57;  22  Pac.  Rep.  517; 
Bulwer  Con.  Min.  Co.  r.  Standard  Con.  Min.  Co.,  83  Cal.  613;  23  Pac. 
Rep.  1109. 

«  Ante,  sec.  45.  '  Curtis  r.  Wilcox,  74  Mich.  69;  41  N.  W.  Rep.  863. 


GROUNDS  FOR  CHANGE  OF  VENUE.  335 

d.  That  the  conveuience  of  witnesses  will  be  subserved 
by  the  trial  of  the  case  in  a  different  place. 

e.  That  the  county  in  which  the  action  is  pending  is  a 
party  to  the  suit, 

/.  That  the  trial  judge  is  a  material  witness  in  the 
cause.^ 

g.  Undue  influence  of  a  party  or  his  attorney.  \ 

But  all  of  these  causes  do  not  exist  iu  all  of  the  states. 
There  is  a  marked  difference  between  these  grounds  for  a 
change  of  venue  as  to  their  effect  upon  the  jurisdiction  of 
the  court.  Where  the  action  is  brought  in  the  wrong 
county,  in  some  of  the  states,  where  this  is  not  made  a 
ground  for  a  transfer  of  the  cause  to  another  county,  and 
the  action  is  local,  the  court  has  no  jurisdiction,  and  any 
judgment  it  may  render  is  wholly  void.^ 

In  those  states  in  which  the  remedy  of  the  party,  where 
the  action  is  brought  in  the  wrong  county,' is  confined  to 
an  application  for  a  change  to  the  proper  county,  the 
jurisdiction  is  contingent  upon  such  application  being 
made.  If  the  application  is  made,  the  right  to  a  change 
is  absolute,  the  application  puts  an  end  to  the  jurisdiction 
of  the  court,  and  any  further  action  on  its  part  is  wholly 
void.^  But  under  such  a  statute,  if  no  application  for  a 
change  is  made  within  the  time  provided,  the  jurisdiction 
of  the  court  becomes  absolute,  and  its  proceedings  are  as 
valid  and  binding  as  if  the  action  had  been  commenced  in 
the  proper  county  or  district.* 

If  the  judge  of  the  court  is  legally  disqualified,  by  rea- 
son of  interest  in  the  result  of  the  action,  or  other  cause, 
he  has  no  jurisdiction.  No  application  for  a  change  is 
necessar}'.  It  is  his  duty  to  decline  to  act.^  But  the  dis- 
qualification of  the  judge  does  not  necessarily  affect  the 
jurisdiction  of  the  court  over  which  he  presides.  Fre- 
quently, provision  is  made  for  the  holding  of  the  court, 

1  Gray  r.  Crockett,  35  Kan.  66 ;  10  Pac.  Rep.  452. 

'  Ante,  sees.  26,  45. 

^  Ante,  sec.  45  ;  Watts  v.  Wliite,  13  Cal.  321  ;  po^t.  sees.  47,  51. 

*  Ante,  sec.  45. 

*  Post,  sec.  47,  51 ;  Freeman  on  Judg.  146. 


336  VENUE. 

for  the  trial  of  such  cause,  by  some  other  judge.  And 
there  may  be  another  competent  judge  within  the  county, 
district,  or  circuit.  Therefore,  such  an  objection  does  not, 
strictly  speaking,  raise  a  question  of  venue,  or  of  the 
jurisdiction  of  the  court,  but  of  the  qualifications  of  the 
judge  to  hold  the  court.^  And  in  some  of  the  states,  a 
common-law  cause  can  not  be  taken  from  the  county  on 
account  of  the  disqualification  of  the  judge,  but  another 
judge  must  be  called  to  preside.^  But  if  the  judge  pro- 
ceeds to  act  under  such  circumstances,  after  the  applica- 
tion for  a  change  has  been  made,  the  validity  of  the  pro- 
ceedings are  as  much  without  jurisdiction  as  if  the  court 
itself  were  without  jurisdiction,  and  all  his  acts  are  void.^ 
Where  the  ground  of  an  application  for  a  change  of 
venue  is  on  account  of  the  bias  or  prejudice  of  the  inhab- 
itants of  the  county,  or  the  convenience  of  witnesses,  the 
jurisdiction  of  the  court  is  not  involved.  In  such  cases  it 
is  held,  in  some  of  the  states,  that  the  right  to  the  change 
is  not  absolute,  but  that  the  question  whether  the  action 
shall  be  transferred  or  not  is  a  matter  of  discretion  on  the 
part  of  the  trial  court.*  And,  even  on  a  direct  attack,  by 
appeal,  upon  an  order  granting  or  refusing  the  change,  the 
order  will  not  be  reversed  unless  it  appears  that  the  dis- 
cretion of  the  court  has  been  abused.^  And  counter  evi- 
dence ma}"  be  given  in  this  class  of  cases  by  the  opposite 
party.®     This  being  so,  the  application  for  the  change  does 

1  Chicago,  B.  &  Q.  R.  Co.  v.  Perkins,  125  111.  127 ;  17  N.  E.  Rep.  1. 

'  State  ('.  Walker,  25  Fla.  561 ;  6  So.  Rep.  169. 

^  Smelzer  v.  Lockhart,  97  Ind.  315 ;  Krutz  v.  Howard,  70  Ind.  174,  179 ; 
Shoemaker  v.  Smith,  74  Ind.  71,  76;  Freeman  on  Judg.,  sec.  146. 

^  DeWeiu  v.  Osborn,  12  Colo.  407  ;  21  Pac.  Rep.  189  ;  De  Walt  v.  Hart- 
zell,  7  Colo.  602  ;  4  Pac.  Rep.  1201 ;  City  of  Philadelphia  v.  Ridge  Ave., 
etc.,  Ry.  Co.,  143  Pa.  St.  444;  22  Atl.  Rep.  695 ;  Thompson  v.  Narwood, 
19  N.  Y.  Sup.  632  ;  Ringgenberg  v.  Hartman,  102  Ind.  537 ;  26  N.  E.  Rep. 
91 ;  Thorp  v.  Bradley,  75  la.  50 ;  39  N.  W.  Rep.  177  ;  In  re  Estate  of 
Whitson,  89  Mo.  58 ;  1  S.  W.  Rep.  125. 

*  Thompson  v.  Narwood,  19  N.  Y.  Sup.  632  ;  Ringgenberg  v.  Hartman, 
102  Ind.  537 ;  26  N.  E.  Rep.  91 ;  Thorp  v.  Bradley,  75  la.  50 ;  39  N.  W. 
Rep.  177  ;  Clanton  v.  RuflFner,  78  Cal.  268 ;  20  Pac.  Rep.  676. 

8  State  V.  Stewart,  74  la.  336;  37  N.  W.  Rep.  400. 


GROUNDS  FOR  CHANGE  OF  VENUE.  337 

not  oust  the  jurisdiction  of  the  court,  but  the  truth  of  the 
facts  alleged  must  appear  to  the  court, ^ 

But  ill  other  states,  a  different  rule  obtains,  as  to  some 
of  these  grounds  for  a  change  of  venue,  because  the  stat- 
ute makes  it  imperative  upon  the  court  to  grant  ther 
change,  upon  the  filing  of  a  proper  affidavit  therefor,  and 
no  counter  showing  is  allowed.^  But  it  is  sometimes  held 
that,  where  the  application  only  affects  the  question  of  a 
trial  of  the  cause,  as,  for  example,  in  case  of  bias  and 
prejudice  of  the  inhabitants,  the  court  may  proceed  with 
the  cause  in  the  county  where  it  is  commenced  until  the 
issues  are  made  up  and  the  cause  is  ready  for  trial.^  And 
sometimes  something  more  than  the  application  is  neces- 
sary to  divest  the  court  of  jurisdiction ;  for  example,  pay- 
ment of  costs.^ 

And  it  is  held  in  some  of  the  states  that  the  application 
for  the  change  does  not  oust  the  jurisdiction  of  the  court, 
but  the  order  of  the  court  granting  the  change  alone  has 
that  effect.* 

The  question  as  to  the  effect  of  the  different  proceed- 
ings on  a  motion  for  a  change  of  venue  on  the  jurisdic- 
tion of  the  courts  from  and  to  whom  the  change  is  taken, 
or  sought  to  be  taken,  has  been  considered  in  another 
place.^ 

In  order  to  render  a  judge  incompetent  because  of  his 
having  been  attorney  for  one  of  the  parties,  he  must  have 
been  such  attorney  in  the  pending  cause  or  some  matter 
involved  in  the  litigation  therein.^ 

But  if  he  has  been  consulted  and  has  advised  with  refer- 
ence to  questions  involved  in  the  litigation,  he  is  disquali- 
fied although  never  regularly  employed  as  an  attorney  in 

^  City  of  Philadelphia  v.  Ridge  Ave.,  etc.,  Ry.  Co.,  143  Pa.  St.  444;  22 
Atl.  Rep.  695. 
^  Post,  sec.  47 ;  Rout  v.  Ninde,  118  Ind.  123 ;  20  N.  E.  Rep.  704. 
'  Ante,  sec.  24,  p.  152. 

*  In  re  Estate  of  Whitson,  89  Mo.  58  ;  1  S.  W.  Rep.  125. 

*  Ante,  sec.  24,  p.  151 ;  post,  sees.  47,  48,  51. 

*  Karcher  v.  Pearce,  14  Col.  557 ;  24  Pac.  Rep.  568. 

99 


338  VENUE. 

the  pending  action.^  And  if  the  judge  has  been  a  witness 
for  one  of  the  parties,  as  to  a  material  and  contested  point 
in  the  cause,  at  a  former  trial,  he  is  disqualified.^ 

So  where  the  judge  has  received  a  general  retainer  from 
one  of  the  parties,  pending  the  litigation,  he  may  properly 
decline  to  hear  the  cause  and  transfer  the  same,  although 
not,  under  the  statute,  strictly  disqualified  to  preside.^ 

A  party  can  not  be  deprived  of  his  right  to  a  removal 
of  the  action  by  joining  in  the  complaint  a  cause  of  action 
that  is  removable  to  another  county  with  one  that  is  not 
removable.* 

47.  Application  pok  change  and  its  effects. — As  we 
have  seen,  in  most  of  the  states,  where  an  action  is  brought 
in  the  wrong  county,  the  party  is  required,  within  the  time 
fixed  by  statute,  to  make  application  for  the  removal  of 
the  same  to  the  proper  county,  in  order  to  avoid  the  trial 
of  it  where  brought.^ 

As  to  the  time  when  the  application  shall  be  made,  and 
the  form  and  manner  of  making  it,  the  statutes  of  the 
several  states  diflfer,  but  these  differences  are  not  important 
here. 

"Whatever  time  may  be  fixed  by  statute  is  binding  upon 
the  party,  and  his  application  must  be  made  within  the 
time  or  his  right  is  lost.^  But  this  is  subject  to  the  right 
of  the  court  to  relieve  a  party  from  an  excusable  neglect, 
or  failure,  to  make  his  application  in  time.^ 

With  respect  to  applications  for  change  of  venue,  on 
other  grounds,  the  time  within  which  the  same  shall  be 
made  is  often  fixed  by  rules  of  courts.  And  so  long  as 
such  rules,  as  to  time,  are  not  unreasonable,  or  in  conflict 

»  Curtis  V.  Wilcox,  74  Mich.  69 ;  41  N.  W.  Rep.  863. 

2  Burlington  Ins.  Co.  v.  McLeod,  40  Kan.  54 ;  19  Pac.  Rep.  354. 

'  Kern  Valley  Water  Co.  v.  McCord,  70  Cal.  646 ;  11  Pac.  Rep.  798. 

*  Ah  Fong  V.  Sternes,  79  Cal.  30;  21  Pac.  Rep.  381. 

^  Ante,  sec.  45;  post,  sec.  49. 

^  Post,  sec.  49;  Granville  County  Board,  etc.,  v.  State  Board,  etc.,  106 
N.  C.  81 ;  10  S.  E.  Rep.  1002. 

^  Shoemaker  v.  Smith,  74  Ind.  71 ;  Shaver  v.  Huntley,  107  N.  Car.  623; 
12  S.  E.  Rep.  316;  Bernhamer  r.  State,  123  Ind.  577;  24  N.  E.  Rep.  509. 


I 


APPLICATION    FOR    CHANGE    AND    ITS    EFFECTS.  339 

with  the  law,  the  court  has  power  to  make  them  and  they 
are  as  binding  on  the  parties  as  if  they  constituted  a 
part  of  the  statute  on  the  subject.^  But  if  the  cause  for 
the  application  is  not  known  until  the  time  has  expired, 
and  could  not  have  been  discovered  with  reasonable  dili- . 
gence,  whether  the  time  is  fixed  by  statute  or  rule  of  court, 
the  party  will,  upon  a  proper  showing,  be  allowed  to  make 
his  application  at  a  later  time.^  But  it  is  not  sufficient  to 
show,  simply,  that  the  cause  was  not  discovered.  It  must 
be  shown  that  due  diligence  was  used  to  discover  the 
facts.^ 

In  some  of  the  states  but  one  change  of  venue  can  be 
had  by  the  same  party,  and  a  second  application  is  prop- 
erly denied  if  the  party,  or  one  of  several  parties,  plaint- 
iff or  defendant,  has  already  had  one  change  of  venue.* 

As  to  the  nature  and  form  of  the  application  the  stat- 
ute controls.  In  some  of  the  states  an  affidavit  of  the 
party,  stating  the  facts  required  by  the  statute  to  be  stated, 
is  all  that  is  necessary."* 

In  others,  a  written  demand  for  the  change,  in  addition 
to  the  affidavit,  is  necessary.^  Generally  this  demand  is 
required  to  precede  a  motion  for  removal.^ 

This  is  to  give  the  plaintift'an  opportunity  to  consent  to 
a  change  of  the  place  of  trial  without  the  expense  of  a 
motion  for  that  purpose,  and  if  the  demand  is  acceded  to 
the  jurisdiction  may  be  transferred  to  the  proper  court  by 
consent  and  without  a  formal  application  or  motion.^ 

Again,  in  some  cases,  the  party  is  required  to  set  forth 

^  Shoemaker  v.  Smith,  74  Ind.  71  ;  Moulder  v.  Kempff,  115  Ind.  459 ; 
17  N.  E.  Rep.  906. 

^Shoemaker  v.  Smith,  74  Ind.  71,  75;  Bernhamer  v.  State,  123  Ind. 
577 ;  24  N.  E.  Rep.  509. 

*  Ringgenberg  v.  Hartman,  102  Ind.  537;  26  N.  E.  Rep.  91;  Witz  v. 
Spencer,  51  Ind.  253. 

*  Peters  r.  Banta,  120  Ind.  416;  22  N.  E.  Rep.  95 ;  Griffith  v.  Dickerman, 
123  Ind.  247  ;  24  N.  E.  Rep.  237. 

*  Fatt  V.  Fatt,  78  Wis.  633  ;  48  N.  W.  Rep.  52. 

s  Penniman  v.  Fuller,  133  N.  Y.  442;  31  N.  E.  Rep.  318;  New  Haven 
Clock  Co.  V.  Hubbard,  16  N.  Y.  Sup.  125;  Elam  v.  Griffin,  19  Nev.  442 ; 
14  Pac.  Rep.  582;  Pennie  v.  Visher,  94  Cal.  323;  29  Pac.  Rep.  711. 

'  Elam  V.  Griffin,  19  Nev.  442;  14  Pac.  Rep.  582. 


340  VENUE. 

specifically  his  defense  to  the  action.^  And  under  some  of 
the  statutes  other  evidence  than  that  of  the  party  is  re- 
quired.^ But  whatever  the  terms  of  the  statute  may  be 
they  must  be  complied  with  or  the  change  must  be  denied.^ 

An  infant  party,  over  the  age  of  fifteen,  has  been  held 
competent  to  make  the  necessary  affidavit  for  removal.^ 

Usually  the  affidavit  in  support  of  an  application  for 
removal  is  required  to  be  made  by  a  party  to  the  action.* 
But  the  affidavit  of  an  attorney,  on  behalf  of  a  party,  has 
been  held  to  be  sufficient.^  And  in  some  cases  a  distinction 
is  made  in  this  respect  between  a  change  from  the  judge 
and  a  change  from  the  county .'' 

Nothing  more  than  a  compliance  with  the  statute  can 
be  required,  by  rules  of  court  or  otherwise.^  But  a  party 
has  no  vested  right  to  a  change  of  venue  on  the  terms 
fixed  by  the  statute  in  force  when  an  action  is  commenced. 
Therefore,  a  statute  subsequently  enacted  requiring  a  dif- 
ferent application  must  be  complied  with  if  the  applica- 
tion for  the  change  is  made  after  the  same  has  gone  into 
force.^ 

An  affidavit  for  a  change  may  be  amended,  with  leave  of 
court,  after  the  time  it  is  required  by  statute  to  be  made.'" 

In  some  of  the  states,  it  is  held  to  be  sufficient  to  set 
forth  the  cause  relied  upon,  in  general  terms,  in  the  lan- 
ofuaire  of  the  statute."  In  others  the  facts  must  be  stated 
from  which  the  court  may  determine  whether  the  cause 
exists  or  not,  as  in  cases  where  it  is  alleged  that  a  fair  and 
impartial  trial  can  not  be  had  before  the  presiding  judge, 
or  that  the  convenience  of  witnesses  demands  it,  or  the 

'  Bowen  v.  Bowen,  74  Ind.  470. 

^  Garrett  v.  Bickler,  78  la.  115  ;  42  N.  W.  Rep.  621 ;  Eikenberry  v.  Ed- 
wards, 71  la.  82 ;  32  N.  W.  Rep.  183. 
3  Smith  V.  Clark,  70  Wis.  137 ;  35  N.  W.  Rep.  318. 
*  Albert  v.  State,  66  Md.  325  ;  7  Atl.  Rep.  697. 
^  Stevens  v.  Burr,  61  Ind.  464. 

^  Perkins  v.  McDowell,  3  Wyo.  203;  19  Pac.  Rep.  440. 
'  Heshion  v.  Pressley,  80  Ind.  490.  ®  Krutz  v.  Howard,  70  Ind.  174. 

9  Eikenberry  v.  Edwards,  71  la.  82;  32  N.  W.  Rep.  183. 

10  Palmer  v.  Barclay,  92  Cal.  199  ;  28  Pac.  Rep.  226. 

"  Fatt  V.  Fatt,  78  Wis.  633;  48  N.  W.  Rep.  52;  Fisk  v.  Patriot,  etc.,  Tp. 
Co.,  54  Ind.  479;  2  Works  Ind.  Pr.  &  PI.,  sec.  1261. 


APPLICATION  FOR  CHANGE  AND  ITS  EFFECTS.      341 

like.^  But  when  the  facts  are  stated,  it  is  held  in  some 
of  the  states  that  the  court  must  take  them  to  be  true  and 
act  accordingly.^  And,  in  most  of  the  states,  the  party  is 
entitled,  as  matter  of  absolute  right,  to  a  change  of  venue 
upon  making  his  application  in  the  form  prescribed.^  Bui 
in  some  of  the  states,  under  some  of  the  grounds,  the 
granting  of  the  motion  is  within  the  legal  discretion  of 
tlie  court,  and  the  facts  alleged  in  support  of  the  motion 
may  be  controverted  by  the  opposite  party.*  And  where 
the  attack  is  upon  the  judge,  on  the  ground  of  bias  and 
prejudice,  and  the  facts  are  required  to  be  stated,  it  is  held 
that  the  judge  may  take  into  account  his  own  knowledge 
of  the  truth  or  falsity  of  the  facts  alleged  in  determining 
upon  the  justice  of  the  demand  for  a  change.^ 

This  is  certainly  a  rather  dangerous  construction  of  the 
statute,  however,  unless  it  can  be  assumed  that  every 
judge  is  upright  and  honest,  because,  under  such  a  con- 
struction, the  very  act  of  granting  the  change  will 
frequently  amount  to  an  admission  on  the  part  of  the 
judge  that  he  has  been  in  the  wrong  in  prejudging  a  cause, 
or  otherwise  so  conducting  himself  as  to  show  that  he  is 
not  fair  minded  and  impartial.  Such  decisions  are  the 
natural  result,  however,  of  the  abuse  of  statutes  authoriz- 
ing changes  of  venue.® 

It  is  held,  also,  that  the  knowledge  of  the  judge  may 
aid  a  defective  application.^     But  there  are  cases  holding 

1  Vance  v.  Field,  89  Ky.  178;  12  S.  W.  Rep.  190;  German  Ins.  Co.  v. 
Landram,  88  Ky.  433;  11  S.  AV.  Rep.  367;  Fellows  r.  Canney,  75  Mich. 
445 ;  42  N.  W.  Rep.  958 ;  DeWaltr.  Hartzell,  7  Colo.  601 ;  4  Pac.  Rep.  1201. 

''  Vance  v.  Field,  89  Ky.  178 ;  12  S.  W.  Rep.  190. 

'  Fatt  V.  Fatt,  78  Wis.  633 ;  48  N.  W.  Rep.  52 ;  Stevens  v.  Burr,  61  Ind. 
464. 

*  Ante,  sec.  46 ;  Garrett  v.  Bickler,  78  la.  115 ;  42  N.  W.  Rep.  621 ; 
Hawes  v.  State,  88  Ala.  37 ;  7  Sou.  Rep.  302 ;  North-eastern  Neb.  Ry.  Co. 
r.  Frazier,  25  Neb.  42 ;  40  N.  W.  Rep.  604 ;  City  of  Philadelphia,  v.  Ridge 
Ave.,  etc.,  Ry.  Co.,  143  Pa.  St.  444 ;  22  Atl.  Rep.  695 ;  Clanton  r.  Ruffner, 
78  Cal.  268;  20  Pac.  Rep.  676. 

^  Garrett  v.  Bickler,  78  la.  115 ;  42  N.  W.  Rep.  621. 

«  Vance  v.  Field,  89  Ky.  178 ;  12  S.  W.  Rej).  190 ;  Garrett  v.  Bickler,  78 
la.  115;  42  N.  W.  Rep.  621. 

'  Gray  v.  Crockett,  35  Kan.  66 ;  10  Pac.  Rep.  452. 


342  VENUE. 

that,  a  proper  affidavit  being  made,  the  knowledge  of  the 
judge  can  not  be  used  to  defeat  the  right  to  a  change.^ 

Disqualification  of  the  judge  does  not  always  entitle  a 
party  to  a  change  from  the  county.^  And  in  some  of  the 
states  no  such  change  can  be  had  on  that  ground,  except 
upon  consent  of  all  the  parties.^ 

Usually,  where  the  application  is  on  the  ground  of  con- 
venience of  witnesses,  the  same  can  not  be  made  until  the 
issues  are  formed,*  and  the  affidavit  is  required  to  show 
merits  and  that  the  facts  to  which  the  witness  will  testify 
have  been  stated  to  counsel.^  And  that  he  has  fully  and 
fairly  stated  the  case  to  his  attorney,  and  that  he  is  in- 
formed by  his  attorney  that  he  has  a  good  and  meritorious 
cause  of  action  or  defense.^ 

Where  the  transfer  of  a  cause  is  allowed,  if  the  judge 
of  the  county  to  which  the  removal  is  asked  is  qualified  to 
hear  the  cause,  that  such  judge  is  qualified  must  be  affirma- 
tively shown/ 

If  the  ground  is  that  the  judge  is  disqualified,  by  reason 
of  his  having  been  of  counsel,  or  the  like,  no  formal  ap- 
plication for  a  change  is  necessary.  It  is  the  duty  of  the 
court  to  order  the  change  upon  a  mere  suggestion  of  the 
fact  or  upon  his  own  motion.^  But  this  is  not  so  where 
the  ground  is  that  the  action  is  brought  in  the  wrong 
county,  although  the  right  to  a  removal  is  absolute.^ 

Where  the  change  is  asked  on  the  ground  that  defend- 
ants residing  in  the  county  have  been  fraudulently  joined, 
in  order  to  give  the  court  jurisdiction  over  the  applicant, 
who  resides  in  another  county,  a  question  of  fact  is  pre- 
sented, the  right  to  a  change  is  not  absolute,  and  the  ques- 
tion of  removal  is  one  within  the  discretion  of  the  court. ^"^ 

1  Witter  V.  Taylor,  7  Ind.  1 10 ;  Fisk  v.  Patriot,  etc.,  Tp.  Co.,  54  Ind.  479. 
'  Ante,  sec.  46.  *  State  v.  Walker,  25  Fla.  561 ;  6  Sou.  Eep.  169. 

*  Thomas  v.  Placerville  G.  Q.  Min.  Co.,  65  Cal.  600;  4  Pac.  Rep.  641. 
^  Briasco  v.  Lawrence,  4  N.  Y.  Sup.  94. 

«  People  V.  Larue,  66  Cal.  235;  5  Pac.  Rep.  157;  Johnson  v.  Walden,  12 
Pac.  Rep.  257. 
'  Kelly  V.  Alcona  Circuit  Court,  79  Mich.  392;  44  N.  W.  Rep.  925. 
«  Joyce  V.  Whitney,  57  Ind.  550.  »  Watts  v.  White,  13  Cal.  321. 

'"  Walker  v.  Nettleton,  52  N.  W.  Rep.  864. 


other  necessary  proceedings  to  procure  transfer.    348 

48.  Other  necessary  proceedings  to  procure  transfer. 
— Usually  an  affidavit  stating  the  facts  authorizing  it  is 
all  that  is  necessary  to  entitle  a  party  to  a  change  of 
venue. ^  But  in  some  of  the  states  a  written  demand  for 
the  change,  either  before  or  at  the  time  of  making  the 
necessary  showing  is  required.^  And  it  is  sometimes  re-' 
quired  that  in  order  to  divest  the  court  in  which  the 
action  is  made  of  jurisdiction,  and  transfer  it  to  the  court 
to  which  the  cause  is  to  be  removed,  other  steps  shall  be 
taken  by  the  party  making  the  application.  As,  for  ex- 
ample, the  payment  or  tender  of  the  costs,  or  the  costs 
occasioned  by  the  change,^  or  that  the  papers  in  the  cause 
be  transmitted  to  the  court  to  which  the  cause  is  re- 
moved within  a  limited  time.*  And  where  such  condi- 
tions are  imposed,  even  though  the'y  are  required  to  be 
performed  after  the  order  for  the  change  is  made,  the 
failure  to  perform  them  renders  all  prior  proceedings  of 
no  effect  and  the  jurisdiction  remains  where  it  was  in  the 
beginning.^ 

But,  pending  the  time  within  which  such  conditions 
may  be  performed,  the  juriediction  of  the  court  is  sus- 
pended,^ except  that  where  the  change  is  asked  on  grounds 
not  affecting  the  judge,  the  court  may  proceed  with  the 
making  up  of  the  issues  in  some  cases,^  or  where  some 
further  action  is  authorized  by  statute  in  order  to  preserve 
the  rights  of  the  parties.'' 

But  such  conditions  are  not  usually  imposed  where  the 

'  Ante,  sec.  47. 

*  Ante,  sec.  47 ;  Penniman  v.  Fuller,  133  N.  Y.  442 ;  31  N.  E.  Rep.  318 ; 
New  Haven  Clock  Co.  v.  Hubbard,  16  N.  Y.  Sup.  125;  Elaui  v.  Griffin, 
19  Nev.  442;  14  Pac.  Rep.  582;  Pennie  v.  Visher,  94  Cal.  323;  29  Pac. 
Rep.  711. 

'  Ante,  sec.  24,  p.  152 ;  Oakley  v.  Dunn,  63  Mich.  494 ;  30  N.  W.  Rep. 
96;  Duncan  v.  Tufts,  52  Ark.  404;  12  S.  W.  Rep.  873;  Estep  v.  Arm- 
strong, 69  Cal.  536;  11  Pac.  Rep.  132. 

*  Ante,  sec.  24,  p.  152;  Cookt;.  McDonnell,  70  Wis.  .329;  35  N.  W.  Rep. 
556. 

=  Ante,  sec.  24,  p.  152;  Post,  sec.  51;  Oakley  v.  Dunn,  03  Mich.  494;  30 
N.  W.  Rep.  96. 

«  Fisher  v.  Cid  Copper  Min.  Co.,  105  N.  Car.  123;  10  S.  E.  Rep.  1055. 
'  Ante,  sec.  24.  p.  152. 


344  VENUE. 

action  is  commenced  in  the  wrong  county,  and  the  party- 
is  entitled  to  a  change  as  a  matter  of  right. 

If  the  cause  is  tried  in  the  court  in  which  the  action  is 
brought,  after  an  application  for  a  change  of  venue  has 
been  made,  it  will  be  presumed,  on  appeal,  there  being  no 
showing  to  the  contrary,  that  subsequent  conditions,  nec- 
essary to  divest  the  court  of  jurisdiction,  were  not  per- 
formed.^ 

A  party  may  be  relieved  from  the  effect  of  a  failure 
to  perform  conditions  of  this  character  upon  a  proper 
showing.^  But  an  offer  to  perform  the  condition,  after 
the  time  fixed  by  law  or  the  order  of  the  court,  where  the 
same  may  be  fixed  by  the  court,  without  suflicient  ex- 
cuse for  not  having  done  so  at  the  proper  time,  is  of  no 
avail.^ 

The  court  can  not  impose  upon  the  applicant  conditions 
not  required  by  the  statute  to  be  performed.^ 

49.  Waiver  as  to  venue. — As  a  rule  the  right  to  the 
trial  of  a  case  in  a  particular  place  is  held  to  be  a  personal 
privilege  that  may  be  waived.  This  is  undoubtedly  so  in 
transitory  actions  or  those  in  which  jurisdiction  of  the 
person  alone  is  involved.^  And  in  some  cases  the  same 
rule  has  been  applied  in  what  were,  at  common  law,  local 
actions,  or  those  in  which  the  location  of  the  subject- 
matter  of  the  action  fixed  and  determined  the  jurisdiction, 
where  the  party  is  limited  by  statute,  in  his  right  to  ques- 
tion the  jurisdiction,  to  an  application  for  a  change  of 
venue.^  But,  as  we  have  seen  elsewhere,  the  rule  on  the 
subject  is  not  uniform.'^ 

In  all  cases  in  which  the  remedy  of  the  party  for  the 
commencement  of  an   action   in  the  wrong  place  is  con- 

1  Duncan  v.  Tufts,  52  Ark.  404 ;  12  S.  W.  Rep.  873. 

2  Cook  V.  McDonnell,  70  Wis.  329;  35  N.  W.  Rep.  556. 

3  Estep  V.  Armstrong,  G9  Cal.  536;  11  Pac.  Rep.  3  32. 

*  Ante,  sec.  47;  Bantley  r.  Stowell,  52  N.  W.  Rep.  92;  South  Pueblo, 
etc.,  Co.  V.  Moore,  10  Colo.  254;  15  Pac.  Rep.  333. 
,*  Ante,  sees.  13,  15,  43. 

«  Ante,  sec.  45 ;  Walker  v.  Stroud,  6  S.  W.  Rep.  202. 
■^  Ante,  sec.  45. 


\ 


WAIVER    AS    TO    VENUE.  345 

fined  to  an  application  to  change  the  venue,  a  faihire  to 
make  such  application  within  the  time  fixed  by  law,  or 
rule  of  court,  in  the  absence  of  some  legal  excuse  therefor, 
is  a  M^aiver  of  the  objection,  and  vests  the  court  in  which 
the  action  is  brought  with  full  jurisdiction  to  proceed  to  a 
final  determination  of  the  cause. ^ 

The  same  rule  as  to  waiver  applies  where  the  question 
is  one  not  afliecting  the  jurisdiction  of  the  court,  as  in  case 
of  local  prejudice  and  like  causes  for  a  change  of  venue.^ 
But  the  entrance  of  a  full  appearance  to  the  action  does 
not  usually  amount  to  a  waiver  as  would  be  the  case 
if  the  question  were  one  of  jurisdiction  of  the  person 
purely. 

Statutes  usually  require  the  application  for  a  change  of 
venue  to  be  made  at  the  time  of,  or  within  a  certain  time 
after  the  answer  is  tiled.^  But  in  many  cases  the  cause 
for  the  change  may  not  be  discovered  until  the  time  within 
which  the  application  is  required  to  be  made  has  expired. 
In  such  cases,  upon  a  proper  showing  of  the  reasons  for 
not  having  made  the  motion  at  an  earlier  day,  the  change 
will  be  allowed.* 

Where  the  demand  for  a  change  of  the  place  of  trial  is 
required  to  be  filed  with  the  answer  it  is  held  that  it  may 
be  tiled  with  an  amended  answer.^  But  an  objection  to 
the  venue  is  waived  by  filing  an  answer  to  the  merits  al- 

1  A7ite,  sees.  45,  47 ;  Powell  r.  Sutro,  80  Cal.  559 ;  22  Pac.  Rep.  308 ; 
Duffy  V.  Hickey,  68  Wis.  380;  32  N.  W.  Rep.  54. 

In  the  case  of  Powell  v.  Sutro,  supra,  it  was  held  that  under  a  statute 
requiring  the  application  to  be  made  at  the  time  the  defendant  appears 
and  answers,  or  demurs,  an  application  could  not  be  made  in  the  superior 
court  where  an  answer  had  been  filed  in  the  justice's  court,  which  had 
the  effect  to  oust  that  court  of  all  jurisdiction  in  the  action  and  transfer 
jurisdiction  to  the  superior  court.  But  the  decision  was  rendered  by  a 
bare  majority  of  the  court  and  is  not  in  harmony  with  the  well-settled 
rule  that  where  a  party  is  prevented,  without  his  fault,  from  making  the 
application  within  the  time  limited  he  may  make  it  at  the  earliest  oppor- 
tunity thereafter.     Ante,  sees.  45,  47. 

*  Ringgenburg  v.  Hartman,  102  Ind.  537;  26  N.  E.  Rep.  91. 
'  Powell  r.  Sutro,  80  Cal.  559 ;  22  Pac.  Rep.  308. 

*  Ante,  see.  47;  Shoemaker  ?•.  Smith,  74  Ind.  71. 

*  Penniman  v.  Fuller  &  Warren  Co.,  133  N.  Y.  442;  31  X.  E.  Rep.  318. 


346  VENUE. 

though  the  answer  is  filed  before  the  expiration  of  the 
time  allowed  the  defendant  to  file  the  sarae.^ 

Where  an  application  for  a  change  has  been  made  and 
denied  where  the  complaint  stated  no  cause  of  action,  it 
is  hold  that  the  application  may  be  renewed  if  a  sufficient 
complaint  is  subsequently  filed  and  that  the  order  denying 
the  change  is  not  an  adjudication  which  will  estop  the 
defendant  from  making  the  second  application.^ 

In  some  of  the  states  it  is  provided  that  the  objection 
that  the  action  was  commenced  in  the  wrong  county,  or 
district,  may  be  made  at  the  trial,  and  that  upon  proof  of 
tlie  fact  the  same  must  be  dismissed.  Under  such  a  stat- 
ute the  failure  to  make  the  objection  at  an  earlier  date  is 
not  a  waiver  of  the  right.^ 

The  party  who  demands  a  change  of  the  place  of  trial 
must  insist  upon  a  ruling  by  the  court.  If  the  motion 
does  not  appear  to  have  been  ruled  upon,  and  the  action 
is  proceeded  with,  the  party  filing  his  answer,  he  will  be 
held,  on  appeal,  to  have  waived  his  objection  to  the  juris- 
diction.* 

Where  the  party  procuring  the  order  of  removal  is  re- 
quired to  cause  the  papers  in  the  case  to  be  transmitted 
within  a  certain  time  a  failure  to  comply  with  the  require- 
ment is,  under  tlie  statutes  of  some  of  the  states,  a  waiver 
of  the  right  to  a  change.^ 

Defects  in  the  application  for  a  change  of  venue  may 
be  waived  by  a  failure  to  make  them  at  the  proper  time. 
When  the  application  or  affidavit  is  defective,  merely,  it  is 
too  late  to  make  the  objection  in  the  court  to  which  the 
action  has  been  removed.''  And  a  consent  to  a  change  to 
a  court  having  jurisdiction  of  the  subject-matter  of  the 
action  is  a  waiver  of  the  necessary  application  thereforJ 

'  Granville  Co.  Board  of  Ed.  v.  State  Board.  106  N.  Car.  81 ;  10  S.  E. 
Rep.  1002. 
2  Veeder  v.  Baker,  83  N.  Y.  163. 
'  Baer  v.  Kempner,  3  N.  Y.  Sup.  529. 

*  Knott  V.  Dubuque,  etc.,  S.  C.  R.  Co.,  51  N.  W.  Rep.  57. 

*  Cook  V.  M'Donnell,  70  Wis.  329 ;  35  N.  W.  Rep.  556. 
«  Squires  i:  Chillicothe,  89  Mo.  228  ;  1  S.  W.  Rep.  23. 

'  Township  t.  County  of  Marion,  110  Ind.  579;  10  N.  E.  Rep.  291. 


COUNTER   MOTION   TO    RETAIN    CASE,  347 

So  where  consent  is  given  to  the  hearing  of  the  application 
on  proof  other  than  that  required  by  law.^  And  where 
the  court  to  which  the  cause  is  removed  has  jurisdiction 
of  the  subject-matter  of  the  action  an  appearance  in  the 
action,  in  such  court,  is  a  waiver  of  any  objection  to  the 
jurisdiction  over  the  person  and  of  any  defects  in  the  pro- 
ceedings to  procure  the  change.^ 

50,  Counter  motion  to  retain  case, — In  most  of  the 
states  a  change  of  the  place  of  trial  from  one  county  to 
another  may  be  had  for  the  convenience  of  witnesses.^ 
But  the  fact  that  the  convenience  of  witnesses  will  be  sub- 
served by  the  trial  of  the  case  in  a  county  other  than  the 
one  in  which  the  action  should  be  brought  is  no  reason 
or  justification  for  bringing  the  action  in*  such  county. 
Therefore,  if  the  action  is  brought  in  such  county,  and  a 
motion  is  made  to  change  the  place  of  trial  on  the  ground 
that  the  case  was  commenced  in  the  wrong  county,  it  is 
no  defense  to  such  an  application  that  it  will  be  to  the  con- 
venience of  the  witnesses  to  try  the  cause  in  the  county  in 
Avhich  it  was  commenced,  nor  will  a  counter  motion  to 
have  the  court  retain  Jurisdiction,  on  that  ground,  be  en- 
tertained. The  cause  must  first  be  removed  to  the  court 
having  jurisdiction,  leaving  the  party  who  has  commenced 
it  in  the  wrong  county  to  make  his  application  in  that 
court  for  a  change  of  the  place  of  trial,^ 

The  right  of  the  defendant  to  a  change  of  venue  in  such 
case  is  absolute,  and  can  not  be  defeated  by  a  counter 
motion  to  retain  the  cause.  But  if  a  change  of  the  place 
of  trial  is  asked  for,  on  grounds  which  address  themselves 
to  the  discretion  of  the  court,  there  is  no  reason  why  the 
court  should  not  consider  other  causes  which  would  tend 

^  Kelly  V.  Alcona  Circuit  Judge,  79  Mich.  392;  44  N.  W.  Rep.  925. 

^  Aurora  F.  Ins.  Co.  v.  Johnson,  46  Ind.  315,  321.  -^  Ante,  sec.  46. 

*  Veeder?'.  Baker,  83  N.  Y.  163;  Park  v.  Carnley,  7  How.  Prac.  355; 
Moore  ?;.  Gardner,  5  How.  Prac.  243;  Van  Kleck  v.  Hanchett,  51  Wis. 
398;  8  N.  W.  Rep.  236.  But  see  on  this  point  Mason  v.  Brown,  6  How. 
Prac.  481 ;  Couillard  v.  Johnson,  24  Wis.  533.  A  contrary  rule  is  main- 
tained in  some  of  the  states.  Edwards  r.  S.  P.  R.  R.  Co.,  48  Cal.  460; 
Hanchett  v.  Finch,  47  Cal.  192;  Hall  v.  C.  P.  R.  R.  Co.,  49  Cal.  454. 


348  VENUE. 

to  establish  the  justice  of  a  demand  that  the  action  be  re- 
tained and  tried  in  the  county  in  which  it  is  pending.^ 

The  question  must  necessarily  turn  upon  the  language 
of  the  statute  authorizing  the  change.  If  the  right  is 
absolute,  and  without  qualification,  the  demand  for  the 
change  must  be  complied  with  and  no  counter  motion  to 
retain  the  case  on  other  grounds  can  be  entertained.^  But 
if  the  granting  of  the  change  is  within  the  discretion  of 
the  court  and  the  propriety  of  such  change  may  properly 
be  inquired  into,  the  court  may  consider  other  reasons 
tending  to  show  the  propriety  of  retaining  the  case.^ 

But  usually,  where  the  motion  for  removal  is  on  other 
grounds  than  that  the  action  was  commenced  in  the  wrong 
county,  no  counter  motion  is  necessary.  Every  thing  which 
would  tend  to  defeat  the  motion  maybe  shown  in  defense 
and  without  a  counter  motion."* 

In  some  of  the  cases  the  right  to  resist  an  application 
for  removal  of  a  cause,  commenced  in  the  wrong  county, 
on  the  ground  of  convenience  of  witnesses,  has  been  de- 
nied where  the  issues  were  not  made  up,  on  the  ground 
that  the  question  of  the  convenience  of  witnesses  can  not 
be  passed  upon  until  the  issues  are  formed  and  the  neces- 
sity for  witnesses  can  be  determined.^  And  the  court  can 
not  delay  action  on  the  application  for  the  change  until 
the  issues  are  made  up,  in  order  to  give  an  opportunity  to 
interpose  a  counter  motion  to  retain  the  action  on  account 
of  the  convenience  of  witnesses.^ 

51.  Order  for  change  and  its  effects. — There  is  some 
discrepancy  in  the  decided  cases  as  to  what  it  is  in  the  pro- 
ceedings  relating  to   changes   of  venue  that  divests  the 

'  See  Mason  v.  Brown,  6  How.  Prac.  481 ;  Park  v.  Carnley,  7  How.  Prac. 
355;  Couillard  v.  Johnson,  24  Wis.  533,  537. 

'^  Van  Kleck  v.  Hanchett,  51  Wis.  398 ;  8  N.  W.  Rep.  236 ;  Kleiners  v. 
Loeb,  25  N.  W.  Rep.  216;  Meiners  v.  Loeb,  64  Wis.  343. 

^  Couillard  v.  Johnson,  24  Wis.  533 ;  A^an  Kleck  v.  Hanchett,  51  AVis. 
398;  8N.  W.  Rep.  236. 

*  Cook  V.  Pendergast,  61  Cal.  72. 

6  Bonnell  v.  Esterly,  30  Wis.  549 ;  Cook  v.  Pendergast,  61  Cal.  72. 

6  Heald  v.  Hendy,  65  Cal.  321. 


ORDER    FOR    CHANGE    AND    ITS    EFFECTS.  349 

court  of  jurisdiction.  This  must  depend,  in  part,  upon 
the  grounds  for  the  application  as  well  as  upon  the  lan- 
guage of  the  statute  under  which  the  change  is  asked  for. 
Where  the  ground  of  the  application  is  that  the  court  has 
not  jurisdiction  because  the  action  has  been  brought  in  the_ 
\\  rong  county  it  is  generally,  but  not  uniformly,  held  that 
the  right  to  a  change  is  absolute  and  that  the  mere  mak- 
ing of  the  proper  application  divests  the  court  of  all  power 
to  proceed  further  in  the  cause  than  to  make  the  necessary 
order  for  the  removal  of  the  same  to  the  proper  court.^ 

In  some  of  the  states  where  application  for  removal  is 
made  on  other  grounds  than  that  the  action  is  brought  in 
the  wrong  county,  the  right  to  the  change,  upon  proper 
application  therefor,  is  absolute,  and  upon  making  such 
application  the  jurisdiction  of  the  court  then  ceases.^ 

Under  such  a  rule  the  order  for  the  change  must  be 
made  as  a  matter  of  course,  and  it  is  not  the  order,  but 
the  application,  that  terminates,  or  suspends,  the  jurisdic- 
tion of  the  court.  But,  strictly  speaking,  whether  it  is 
the  application  or  the  order  that  transfers  it,  the  jurisdic- 
tion is  only  suspended  and  is  subject  to  be  revived  by  a 
failure  on  the  part  of  the  applicant  to  comply  with  sub- 
sequent conditions,  where  such  conditions  are  imposed, 
such  as  payment  of  costs,  transmission  of  papers,  and  the 
like.=* 

The  order  for  removal  does  not  generally  transfer  juris- 
diction to  the  court  to  whom  the  case  is  ordered  to  be  sent 
at  the  time  the  order  is  made.  This  is  done  by  filing  a 
transcript  of  the  order  and  the  papers  or  transcript  of  the 
same,  as  may  be  required,  in  that  court.* 

In  the  meantime,  unless  authority  is  given  to  one  or  the 
other  of  the  courts  to  act,  neither  court  has  jurisdiction  to 
proceed  in  the  cause.  But  when  the  transcript  of  the 
order  of  removal  reaches  the  court  to  which  the  cause  is 

'  Ante,  sec.  24,  p.  151,  sees.  45,  47;  Smith  v.  People,  29  Pac.  Rep.  924. 
-  Ante,  sec.  47;  Fatt  r.  Fatt.  7S  Wis.  633;  48  N.  W.  Rep.  52;  Stevens 
V.  Burr,  61  Ind.  464. 

^  Ante.  sec.  24,  p.  151,  sees.  47,  48. 
*  Faweett  v.  The  State,  71  Ind.  590. 


350  VENUE. 

removed,  it  is  the  order  of  the  court  from  which  it  is 
transmitted  that  vests  the  former  court  with  jurisdiction.^ 
And  no  Hmitation  of  such  jurisdiction  can  he  effected  by 
any  provision  in  an  order,  otherwise  sufficient  to  vest  full 
jurisdiction,  nor  can  any  condition  as  to  the  time  or  man- 
ner of  taking  or  acquiring  such  jurisdiction,  not  provided 
for  by  law,  be  imposed  by  such  order.^ 

But  there  are  cases  holding  that  by  the  entry  of  the 
order  the  court  making  it  loses  jurisdiction  at  that  mo- 
ment, and  the  court  to  which  it  is  ordered  removed  ac- 
quires jurisdiction  thereby,  and  at  the  same  time.^ 

Where  some  subsequent  act  on  the  part  of  the  applicant 
for  the  change  is  required,  as  for  example  the  payment  of 
costs,  the  jurisdiction  of  the  court  stands  suspended,  when 
the  order  is  made,  until  such  act  is  performed,  and  if  it  is 
not  performed  within  the  time  fixed  by  law  or  the  order 
of  the  court,  the  court  may  set  aside  its  order  granting 
the  change  and  resume  jurisdiction  of  the  action.^ 

If  it  appears  from  the  order,  or  other  part  of  the  record, 
that  no  legal  cause  for  removal  exists  the  court  to  which 
the  cause  is  sent  has  no  jurisdiction  and  should  refuse  to 
hear  the  same.* 

It  is  otherwise  if  the  facts  authorizing  a  change  of  venue 
do  not  in  fact  exist,  but  the  fact  of  their  non-existence 
does  not  appear  from  but  must  be  proved  by  evidence 
dehors  the  record.  The  proper  place  to  contest  the  ques- 
tion whether  a  cause  for  removal  is  shown  in  such  case  or 
not  is  in  the  court  in  which  the  application  is  made.  It 
can  not  be  contested  by  evidence  outside  of  the  record  in 
the  court  to  which  the  cause  is  removed.^ 

It  is  held  that  if  a  removal  is  authorized  by  law,  only 

^  State  V.  Weddington,  103  N.  Car.  364 ;  9  S.  E.  Rep.  577. 
""  In  re,  Whitson,  89  Mo.  58 ;  1  S.  W.  Eep.  125. 

*  Estep  V.  Armstrong,  69  Cal.  536;  11  Pac.  Rep.  132. 

♦  Kahanek  v.  Galveston  H.  &  S.  A.  Ry.  Co.,  72  Tex.  476;  10  S.  W.  Rep. 
570;  Taylor  v.  Williams,  26  Tex.  583. 

^See  Kahanak  v.  Galveston  H.  &  S.  Ry.  Co.,  72  Tex.  476;  10  S.  W. 
Rep.  570;  Hall  v.  Jackson,  3  Tex.  305,  308;  Stearns  r.  St.  Louis  &  S.  F. 
Ry.  Co.,  94  Mo.  317;  7  S.  W.  Rep.  270;  Squires  v.  Chillicothe,  89  Mo. 
226;  IS.  W.  Rep.  23. 


ORDER  FOR  CHANGE  AND  ITS  EFFECTS,         351 

on  condition,  and  the  record  fails  to  show  the  existence  of 
such  condition,  the  court  to  which  the  action  is  removed 
does  not  acquire  jurisdiction.^  The  presumption  is,  usu- 
ally, however,  that  the  court  acted  rightly  in  granting  the 
change,  and  that  the  circumstances  authorizing  the  re- 
moval of  the  cause  actually  existed.^ 

But  the  distinction  between  a  case  where  there  is  an 
entire  want  of  jurisdiction  in  the  court  to  grant  a  change 
of  venue,  or  one  in  which  no  change  could  be  granted 
under  any  circumstances,  or  one  where  a  change  is  autho- 
rized upon  a  certain  showing  and  no  showing  whatever 
has  been  made,  and  cases  where  the  court  has  jurisdiction 
to  grant  a  change,  and  the  proceedings  had  to  obtain  it 
are  defective,  merely,  must  be  borne  in  mind.  In  the 
former  the  order  of  the  court  i»  a  nullity  and  vests  no 
jurisdiction  in  the  court  to  which  the  cause  is  removed.^ 
In  the  latter  the  order  is  erroneous,  and  not  void,  the 
latter  court  acquires  jurisdiction,  and  the  action  of  the 
court  in  granting  the  change  can  only  be  reviewed  on 
appeal  or  attacked  in  some  other  direct  way  authorized  by 
law.  It  can  not  be  attacked  collaterally.*  And  the  objec- 
tion should  be  taken  in  the  court  making  the  order,  and 
not  in  the  court  to  which  the  cause  is  removed,  and  the 
necessary  exception  taken  and  preserved  there,  as  a  foun- 
dation for  the  appeal.^ 

There  are  cases,  however,  which  seem  to  overlook  this 
distinction.^ 

Where  the  question  of  removal  depends  upon  the  proof 
of  certain  facts,  and  the  evidence  is  not  conflicting,  but  is 
all  one  way,  the  question  on  appeal  from  an  order  grant- 

"  Howe  V.  Stevenson,  84  Ky.  576;  2  S.  W.  Rep.  231. 

2  Hall  V.  Jackson,  3  Tex.  305;  Shirts  v.  Irons,  47  Ind.  445,  453. 

*  Baum  V.  Burns,  66  Miss.  124;  5  Sou.  Rep.  697. 

*  Stearns  v.  St.  Louis  &  S.  F.  Ry.  Co.,  94  Mo.  317;  7  S.  W.  Rep.  270; 
Squires  v.  Chillicothe,  89  Mo.  226;  1  S.  W.  Rep.  23;  Fellows  r.  Canney, 
75  INIich.  445 ;  42  N.  W.  Rep.  958;  Joerns  v.  La  Nicca,  75  la.  705;  38  N. 
W.  Rep.  129;  Dimmitt  r.  Robbins,  74  Tex.  441 ;  12  S.  W.  Rep.  94;  Gage 
V.  Downey,  19  Pac.  Rep.  113,  118. 

*  Ante,  sec.  49;  Squires  v.  Chillicothe,  89  Mo.  226;  1  S.  W.  Rep.  23. 
«  Vance  v.  Field,  89  Ky.  178;  12  S.  AV.  Rep.  190. 


352  VENUE. 

ing  or  refusing  a  change  of  venue  becomes  one  of  law, 
and  the  decision  of  the  court  below,  or  officer  who  is  au- 
thorized to  pass  upon  the  question,  is  not  conclusive.^  But 
if  the  evidence  is  conflicting  the  decision  is  conclusive  and 
will  not  be  reviewed  on  appeal,^  unless  there  appears  to 
have  been  an  abuse  of  discretion.^ 

It  is  held,  in  some  cases,  that  where  the  place  of  trial  is 
changed  by  consent  no  order  for  such  change  is  necessary, 
and  that  the  consent  of  parties  and  tiling  of  the  papers  in 
the  court  to  which  the  cause  is  to  be  removed,  is  all  that 
is  necessary  to  give  that  court  jurisdiction.* 

It  has  been  held  that  a  conditional  order  for  a  change 
of  the  place  of  trial  upon  payment  of  costs  may  be  made, 
followed  by  an  absolute  order  of  transfer  upon  such  costs 
being  paid,  or  an  order  denying  the  change  on  the  ground 
that  such  costs  have  not  been  paid.^ 

The  court  making  an  order  changing  the  venue  has 
jurisdiction  to  set  such  order  aside  on  the  ground  that  it 
was  inadvertently  made.® 

52.  Remanding  cause. — If  the  cause  has  been  removed 
without  authority  of  law  or  under  such  circumstances  as 
would  render  the  order  of  removal  void,  no  application  to 
remand  the  cause  is  necessary,  and  it  would  seem  that  the 
court  to  which  it  has  been  transferred  would  have  no  ju- 
risdiction to  make  any  order  for  the  return  of  the  case  to 
the  proper  court  because,  the  order  being  void,  the  juris- 
diction has  never  been  transferred,  but  remains  where  it 
was  in  the  beginning.^  Such  being  the  case  the  court  to 
which  the  action  has  been   attempted  to  be  transferred 

1  Curtis  V.  Wilcox,  74  Mich.  69 ;  41  N.  W.  Rep.  863 ;  Kennon  v.  Gilmer, 
131  U.  S.  22  ;  9  Sup.  Ct.  Rep.  696. 

^  Fellows  V.  Canney,  75  Mich.  445;  42  N.  W.  Rep.  958;  Thompson  r. 
Norwood,  19  N.  Y.  Sup.  632;  Hamilton  v.  Des  Moines  &  K.  C.  Ry.  Co., 
50  N.  W.  Rep.  567. 

3  Thompson  v.  Norwood,  19  N.  Y.  Sup.  632 ;  Ante,  46,  47. 

*  Ante,  sec.  47  ;  Woodward  v.  Hanchett,  52  Wis.  482 ;  9  N.  W.  Rep.  468. 

*  Armstrong  v.  Superior  Court,  63  Cal.  410. 

«  Baker  v.  Fireman's  Fund  Ins.  Co.,  73  Cal.  182;  14  Pac.  Rep.  686. 
'  Ante,  sec.  51. 


REMANDING    CAUSE.  353 

could  be  prevented  from  proceeding,  and  the  court  in 
which  it  was  commenced  could  be  compelled  to  proceed 
with  it. 

But  it  has  been  held  that  where  a  change  of  venue  has 
been  ordered  in  a  case,  not  authorized  by  law,  which- 
would  render  the  order  void,  the  court  to  which  the  case 
has  been  transferred  may  direct  the  case  to  be  retrans- 
ferred  to  the  court  making  the  order,  and  that  an  order 
for  such  transfer  may  be  made  by  the  appellate  court  on 
appeal.^ 

If  the  action  has  been  irregularly  transferred  and  such 
irregularity  has  not  been  waived  by  a  failure  to  make  the 
proper  objection  in  the  court  making  the  order,  or  in  some 
other  way,^  the  proper  practice  is  to  move  the  court  to 
which  the  case  has  been  removed  to  remand  the  same 
to  the  court  making  the  order.  But  if  the  proceedings 
resulting  in  the  change  are  irregular,  merely,  and  not 
void,  the  court  to  which  the  case  has  been  removed  has 
jurisdiction,  and  its  refusal  to  remand  the  same  is  an  error, 
merely,  which  can  only  be  taken  advantage  of  by  a  direct 
proceeding.^  And  the  error  is  one  that  may  be  waived  by 
appearing  and  proceeding  in  that  court.* 

Under  such  circumstances  the  court  can  not  arbitrarily 
and  of  its  own  motion  remand  the  cause.®  But  it  may  be 
remanded  by  consent  of  the  parties.^ 

1  Rogers  v.  Watrous,  8  Tex.  62,  65;  58  Am.  Dec.  100. 
^  Ante,  sec.  49. 

^  Ante,  sec.  51 ;  Mannix  v.  State,  115  Ind.  245 ;  17  N.  E.  Rep.  565. 
*  Ante,  sec.  49 ;  Howe  v.  Stevenson,  84  Ky.  576 ;  2  S.  W.  Rep.  231. 
^  Coleman  v.  Floyd,  31  N.  E.  Rep.  75. 
«  Hazard  v.  Wason,  152  Mass.  268;  25  N.  E.  Rep.  465. 
23 


854 


JUDGES. 


CHAPTER  V. 


JUDGES. 

53.  Defined. 

54.  Power  of  legislature  to  confer  or  take  away  jurisdiction. 

55.  Power  of  legislature  to  impose  other  than  judicial  duties  on  judges. 

56.  General  powers  and  duties  of  judges. 

57.  Power  to  act  in  another  district. 

58.  Authority  at  chambers. 

59.  Authority  to  act  in  vacation. 

60.  De  jure  and  de  facto  judges. 

61.  Special  judges. 

62.  Judges  disqualified  by  interest  or  otherwise. 

63.  Bias  and  prejudice  of  judges  as  affecting  jurisdiction. 

64.  Liability  of  judge  acting  without  jurisdiction. 

53.  Defined. — A  judge  is  defined  to  be  "  a  public  officer 
wbose  function  is  to  declare  the  law,  to  administer  justice 
in  a  court  of  law,  to  conduct  the  trial  of  causes  between 
litigants  according  to  legal  forms."  ^  But,  as  we  are  here 
to  consider  it,  the  term  must  be  given  a  much  broader 
scope  and  meaning  so  as  to  include  any  and  all  persons 
authorized  to  decide  litigated  questions,  but  who  do  not 
constitute  or  act  as  a  court,  such  as  commissioners,  ref- 
erees, arbitrators,  and  others  appointed  for  a  temporary 
purpose,  but  whose  decisions  are  binding  upon  the  parties 
either  with  or  without  the  confirmation  of  such  decisions 
by  a  court,^  and  other  officers  acting  partly  in  a  judicial 
and  partly  in  an  executive,  legislative,  or  ministerial  ca- 
pacity.^ Strictly  speaking,  however,  such  officers,  al- 
though exercising  judicial  functions,  are  not  judges,  and 

'  Anderson's  Die.  of  Law,  574. 

"A  judge  is  a  public  officer  appointed  to  decide  litigated  questions  ac- 
cording to  law;  an  officer  so  named  in  his  commission,  and  who  pre- 
sides in  some  court."  12  Am.  &  Eng.  Enc.  of  Law,  2 ;  Bouv.  Law  Die, 
title.  Judge. 

'  Anderson's  Die.  of  Law,  575. 

3  People  V.  Mann,  97  N.  Y.  530,  532 ;  49  Am.  Rep.  556. 


POWER    TO    CONFER    OR    TAKE    AWAY    JURISDICTION.         355 

are  not  included  in  legislation  applicable  to  judges  by  that 
designation.^  But,  as  affecting  their  action  as  judicial 
officers,  they  may  properly  be  so  treated,  although  not  al- 
ways to  be  controlled  by  the  same  rules  of  law  as  affecting 
tlie  question  of  jurisdiction.^ 

At  the  present  day  justices  of  the  peace  are  judges  so 
far  as  the  rules  of  law  affecting  their  judicial  acts  are  con- 
cerned.^ So  members  of  a  court  martial  are  judges.*  In 
many  of  the  states  the  term  "justice"  is  used  in  desig- 
nating the  office  instead  of  judge,  but  not  as  distinguish- 
ing one  from  the  other  as  different  officers.^  A  judge  may 
be  authorized  to  perform  purely  ministerial  or  executive 
duties,  but  when  so  acting  he  can  not  be  regarded  as  a 
judge,  nor  will  the  acts  done  by  him  be  treated  as  judicial 
because  they  are  performed  by  a  judicial  officer.®  On  the 
other  hand,  unless  prohibited  by  constitutional  provisions, 
the  legislature  may  confer  upon  executive  or  legislative 
bodies  or  officers,  judicial  functions,  and  when  acting  ju- 
dicially, they  are  controlled  by  the  rules  of  law  applicable 
to  judges.^ 

54.  Power  of  legislature  to  confer  or  take  away  juris- 
diction.— The  powers  with  which  judges  are  clothed,  may 
be  constitutional  or  legislative.^  If  constitutional,  the}' 
are  beyond  the  power  of  the  legislature  to  limit  or  con- 
trol.^ And  where  a  court  is  created  and  jurisdiction  con- 
ferred upon  it  by  the  constitution,  the  legislature  can  not 

1  People  V.  Carr,  100  N.  Y.  236;  3  N.  E.  Rep.  82;  People  v.  Mann,  97 
X.  Y.  530,  532;  49  Am.  Rep.  556;  Foot  v.  Stiles,  57  X.  Y.  399. 

2  Foot  V.  Stiles,  57  X.  Y.  399;  Post,  sec.  62. 

3  Ante,  sees.  6,  7;  Baldwin  v.  McArthur,  17  Barb.  (N.  Y.)  414,  423. 

*  Vanderheyden  r.  Young,  11  Johns.  (N.  Y.)  150. 
^  Anderson's  Die.  of  Law,  575. 

*  Post,  sec.  55;  People  v.  Bush,  40  Cal.  344;  Spring  Valley  W.  "W.  v. 
Bryant,  52  Cal.  132,  136 ;  People  r.  Provines,  .34  Cal.  520. 

'  Spring  Valley  W.  W.  v.  Bryant,  52  Cal.  132. 

®  Ante,  sees.  10,  24. 

^  Ante,  sec.  24  ;  In  re  Constitutionality  of  Senate  Bill,  21  Pac.  Rep.  471 ; 
Harris  v.  Vandeveer,  21  N.  J.  Eq.  424 ;  Hutkoff  v.  Demorest,  103  N.  Y. 
377 ;  8  N.  E.  Rep.  899 ;  Landers  v.  Staten  Island  R.  R.  Co.  53  N.  Y.  450 ; 
Alexander  v.  Bennett,  60  N.  Y.  204. 


35t)  JUDGES. 

authorize  a  commissioner  appointed  for  the  purpose  to  per- 
form the  duties  imposed  upon  the  court.^  Not  only  so, 
but  it  is  generally  held  that  the  legislature  can  not  confer 
judicial  powers  upon  non-judicial  officers.^  Nor  can  such 
powers  be  conferred  by  consent  of  parties.^  But  it  must 
not  be  understood  from  this  that  the  same  officer  may  not 
perform  botli  ministerial  or  executive  and  judicial  func- 
tions. It  is  not  an  uncommou  practice  to  confer  upon  the 
same  officer  or  body  of  officers  these  different  duties.^ 
And  when  exercising  judicial  functions,  such  an  officer  is 
a  judicial  officer,  but  when  acting  in  a  legislative,  execu- 
tive, or  administrative  capacity,  he  belongs,  for  the  time 
being,  to  one  of  the  other  classes  of  officers  as  the  case  may 
be.  But  whether  the  duties  pertaining  to  different  de- 
partments of  government  can  be  imposed  upon  and  exer- 
cised by  the  same  officer,  must  depend  upon  the  constitu- 
tion under  which  the  office  exists.^ 

In  many,  if  not  most  of  the  states,  the  different  depart- 
ments of  government  are  kept  entirely  separate  from  each 
other,  and  it  is  provided  by  the  constitution  that  an 
officer  of  one  department  shall  not  perform  the  duties  per- 
taining to  another  department.  Under  such  a  constitu- 
tional inhibition,  the  legislature  can-  not  confer  judicial 
powers  upon  an  officer  of  the  legislative  or  executive  de- 
partment.'^ 

The  rule  is  the  same  where  the  constitution  vests  all  ju- 

1  Ante,  sec.  29,  p.  194;  State  v.  Noble,  118  Ind.  361 ;  21  N.  E.  Rep.  244; 
12  Am.  &  Eng.  Enc.  of  Law,  4 ;  Vandercook  v.  Williams,  106  Ind.  345, 
356;  1  N.  E.  Rep.  619;  8  N.  E.  Rep.  113. 

=^  Vandercook  v.  Williams,  106  Ind.  345,  356;  1  N.  E.  Rep.  619;  8  N.  E. 
Rep.  113;  State  v.  Noble,  118  Ind.  350;  21  N.  E.  Rep.  244;  Gregory  v. 
The  State,  94  Ind.  384;  48  Am.  Rep.  162;  Stone  i-.  Elkins,  9  Cal.  125. 

*  Hoagland  v.  Creed,  81  111.  506. 

*  Post,  sec.  55 ;  Ante,  sec.  53  ;  12  Am.  &  Eng.  Enc.  of  Law,  2,  6,  7,  notes ; 
People  V.  Provines,  34  Cal.  520;  People  v.  Keeler,  99  N.  Y.  463,479; 
Keeler  v.  McDonald,  2  N.  E.  Rep.  615;  People  v.  Bush,  40  Cal.  344. 

'"  Post,  sec.  55. 

«  Vandercook  v.  Williams,  106  Ind.  345,  357;  1  N.  E.  Rep.  619;  8  N.  E. 
Rep.  113;  Elmore  v.  Overton,  104  Ind.  548;  4  N.  E.  Rep.  197;  Shoultz  v. 
McPheeters,  79  Ind.  373;  Pressly  v.  Lamb,  105  Ind.  171,  185;  4  N.  E. 
Rep.  682 ;  Hall  v.  Marks,  34  111.  358. 


POWER   TO    CONFER   OR   TAKE    AWAY   JURISDICTION.         357 

•dicial  powers  in  the  courts,  without  any  direct  provision 
against  the  exercise  of  such  powers  by  non-judicial  officers.^ 
But  there  are  many  duties,  judicial  in  their  nature  and 
which  call  for  the  exercise  of  judgment,  w^hich  are  held 
not  to  be  strictly  so,  and,  therefore,  not  within  these  con-- 
stitntional  inhibitions.^  And  such  a  provision  of  the  con- 
stitution has  the  effect  to  abrogate  statutory  provisions 
then  in  force  vesting  jurisdiction  in  officers  not  named  in 
the  constitution,  and  of  depriving  such  officers  of  the 
powers  thus  given  them.^ 

Where  judicial  power  is  vested  by  the  constitution  in 

'  Ante,  sec.  29;  State  v.  Noble,  118  Ind.  350;  21  N.  E.  Rep.  244;  Van 
Slyke  V.  Trempealeau  County,  etc.,  Ins.  Co.,  39  Wis.  390;  20  Am.  Rep. 
50;  Attorney-General  v.  McDonald,  3  Wis.  805;  State  v.  Maynard,  14  111. 
419 ;  Kilbourn  v.  Thompson,  103  U.  S,  168,  192. 

2  Wilkins  v.  State,  113  Ind.  514 ;  16  N.  E.  Rep.  192 ;  Elmore  v.  Overton, 
104  Ind.  548;  4  N.  E.  Rep.  197;  Kuntz  v.  Sumption,  117  Ind.  1 ;  19  N.  E. 
Rep.  474;  In  re  Stevens,  83  Cal.  322,  332 ;  23Pac.  Rep.  379. 

"Scrupulous  care  was  taken  by  the  framers  of  our  constitution  to  dis- 
tribute the  powers  of  government,  and  to  define  and  fix  the  rights  and 
powers  of  the  great  departments  to  which  these  rights  and  powers  were 
distributed.  The  boundaries  of  each  are  marked  with  certainty  and 
precision.  There  can  be  no  doubt  where  the  judicial  power  is  vested. 
JSection  1,  of  article  7,  as  originally  framed,  read  thus:  'The  judicial 
power  of  the  state  shall  be  vested  in  a  supreme  court,  in  circuit  courts, 
and  in  such  inferior  courts  as  the  general  assembly  may  establish.'  On 
the  14th  day  of  March,  1881,  the  electors  of  the  state,  at  a  special  election 
held  on  that  day,  ratified  an  amendment  to  the  section  and  article 
named.  This  amendment  reads  as  follows:  'The  judicial  powers  of 
the  state  shall  be  vested  in  a  supreme  court,  circuit  courts,  and  such 
other  courts  as  the  general  assembly  may  establish.'  All  judicial 
powers  are,  by  force  of  this  provision,  vested  in  the  courts  of  the  state. 
The  legislature  has  no  authority  to  invest  any  other  tribunals  than  the 
courts  with  judicial  powers. 

"  It  is  certain  that  the  legislature  can  not  exercise  judicial  powers.  The 
Columbus,  etc.,  Ry.  Co.  v.  The  Board,  etc.,  65  Ind.  427;  Doe  v.  Douglass, 
8  Blackf.  10;  Young  v.  The  State  Bank,  4  Ind.  301.  Nor  can  these 
powers  be  vested  elsewhere  than  in  the  tribunals  designated  or  indicated 
by  the  constitution.  Judicial  powers  can  not  be  delegated.  Taking  and 
following  as  guides  these  fundamental  principles,  we  are  led  to  the  con- 
clusion that  judicial  powers  can  not  be  vested  in  officers,  such  as  master 
commissioners,  appointed  by  the  judges  of  the  courts."  Shoultz  v.  Mc- 
Pheeters,  79  Ind.  373. 

*  State  V.  Maynard,  14  111.  419  ;  Hitts  v.  City  of  Chicago,  60  111.  86,  92. 


358  JUDGES. 

courts,  it  can  not  be  given  to  judges  as  distinguished  from 
the  courts  in  which  they  officiate.^  But  whether  an  act  to 
be  done  is  in  fact  a  judicial  one  which  must  be  performed 
by  a  court  or  not,  may  sometimes  be  determined  from  the 
act  of  the  legislature.^ 

It  is  held  that  the  judge  of  a  court  may  be  invested 
with  jurisdiction  of  matters  over  which  his  court  has  no 
jurisdiction  and  which  are  supplementary  to  the  jurisdic- 

'  Spencer  Creek  Water  Co.  v.  Vallejo,  48  Cal.  70. 

"If  we  understand  the  drift  of  their  argument,  they  assume  the  act 
has  provided  two  distinct  forums,  or  tribunals,  in  which  cases  of  this  kind 
may  be  prosecuted,  one  being  a  court,  and  the  other  a  judge,  and  that 
a  suit  having  been  commenced  before  one,  can  not,  for  any  purpose,  be 
regarded  as  pending  before  the  other.  This  is  not  stated  in  so  many 
words,  but  it  is  what  seems  to  be  the  purport  or  effect  of  the  argument. 
While  the  expression,  '  court  or  judge,'  which  runs  through  most  of  the 
sections  in  the  act,  seems  to  give  color  to  this  view,  and  while  the  act 
unquestionably  contemplates  some  diversity  in  the  procedure  depend- 
ing upon  whether  it  is  commenced  in  term  time  or  in  vacation,  never- 
theless, the  proceeding  in  either  case  must,  in  contemplation  of  law,  be 
regarded  as  pending  in  court.  The  judge,  as  a  mere  individual,  has  no 
power  to  hear  and  determine  any  cause  involving  the  exercise  of  judicial 
power,  nor  is  it  competent  for  the  legislature  to  clothe  him  with  it.  The 
organic  law  of  the  state  has  disposed  of  the  whole  judicial  power  of  the 
government  by  investing  it  in  certain  courts  specifically  mentioned  in 
the  constitution,  and  the  legislature,  therefore,  has  none  to  confer  upon 
any  one.  It  can  only  establish  or  provide,  by  appropriate  legislation, 
for  the  organization  of  such  courts  as  the  constitution  has  expressly 
provided  for,  and  when  so  organized  or  established,  they  derive  their 
powers  directly  from  the  people,  in  their  organized  political  capacity, 
through  the  constitution.  Courts  are  political  agencies — mere  legal 
entities — established  under  the  constitution  for  governmental  purposes, 
and  in  contemplation  of  law  have  a  separate  existence  distinct  from  the 
judges  who  preside  over  them ;  otherwise,  when  the  judge  of  a  court 
dies,  the  court  itself  would  cease.  A  judge,  therefore,  has  no  judicial 
power  outside  of  the  court  in  which  he  officiates.  He  is  the  tangible, 
living  oracle  of  the  court.  He  speaks  and  acts  for  it,  and  in  law  is  its 
only  accredited  agent.  When  discharging  the  judicial  functions  of  his 
ofl&ce,  he  is  the  court  in  concrete  form,  and  in  this  sense  he  is  often 
called  the  court,  but  strictly  and  technically  speaking,  the  judge  and  the 
court  are  wholly  distinct.  To  every  lawyer  these  general  propositions 
are  so  palpably  true,  they  require  no  illustrations  or  authorities  to  sup- 
port them.  The  People  v.  Maynard,  14  111.  419 ;  Field  v.  The  People,  2 
Scam.  181."     Bowman  r.  Venice,  etc.,  Ey.  Co.,  102  111.  459,  467. 

2  In  re  Stevens,  83  Cal.  322,  333 ;  23  Pac.  Eep.  379. 


POWER   TO    CONFER   OR   TAKE    AWAY   JURISDICTION.        359 

tion  of  a  different  court  and  taken  from  such  court  by 
statute.^ 

The  question  as  to  the  power  of  other  than  judicial 
officers  or  courts  to  punish  for  contempt  has  frequently 
arisen,  and  it  has  generally  been  held  that  a  legislative 
body  does  not  possess  general  jurisdiction  to  punish  ibr 
contempt,  unless  such  power  is  expressly  given  by  the 
constitution,  or  is  necessarily  implied  from  those  constitu- 
tional functions  and  duties  to  the  proper  performance  of 
which  it  is  essential.^  And  statutes  attempting  to  confer 
such  general  power  are  unconstitutional.* 

But,  where  the  statute  confers  only  such  powers  as  are 
necessary  or  appropriate  to  enable  such  legislative  body  to 
perform  its  constitutional  functions  it  is  not  in  contraven- 
tion of  the  constitution.* 

^  Young  V.  Ledrick,  14  Kan.  92,  99. 

^  Kilbourn  v.  Thompson,  103  U.  S.  168 ;  People  v.  Keeler,  99  N.  Y.  463, 
475 ;  Keeler  v.  McDonald,  2  N.  E.  Rep.  615 ;  Burnham  v.  Morrissey,  80 
Mass.  (14  Gray)  226,  239;  74  Am.  Dec.  676. 

'  People  V.  Keeler,  99  N.  Y.  463,  479 ;  2  N.  E.  Rep.  615. 

*  People  V.  Keeler,  99  N.  Y.  463,  480;  Keeler  v.  McDonald,  2  N.  E.  Rep. 
615. 

"  The  Constitution  of  the  United  States  declares,  in  terms,  that  the 
judicial  power  of  the  United  States  shall  be  vested  in  one  supreme 
court,  and  in  such  inferior  courts  as  the  congress  may,  from  time  to 
time,  order  and  establish.  Although  no  similar  declaration  is  contained 
in  the  constitution  of  this  state,  still  it  is  a  recognized  principle  that,  in 
the  division  of  power  among  the  great  departments  of  government,  the 
judicial  power  has  been  committed  to  the  judiciary,  as  the  executive 
power  has  been  committed  to  the  executive  department,  and  the  legis- 
lative to  the  legislature,  and  that  body  has  no  power  to  assume  the  func- 
tions of  the  judiciary  to  determine  controversies  among  citizens,  or  even 
to  expound  its  own  laws  so  as  to  control  the  decisions  of  the  courts  in 
respect  to  past  transactions.  People  v.  Supervisors,  16  N.  Y.  432.  To 
declare  what  the  law  shall  be,  is  a  legislative  power;  to  declare  what  it 
is  or  has  been,  is  judicial.  Thompson,  J.,  in  Dash  v.  Van  Kleeck,  7 
Johns.  498.  But,  notwithstanding  this  general  division  of  powers,  cer- 
tain powers  in  their  nature  judicial  are,  by  the  express  terms  of  the 
constitution,  vested  in  the  legislature.  The  power  of  impeachment  is 
vested  in  the  assembly.  Each  house  is  made  the  judge  of  the  qualifica- 
tion and  election  of  its  own  members.  The  power  of  removal  of  certain 
judicial  officers  for  cause  is  given  by  the  constitution  to  the  senate  and 
assembly,  and  may  involve  inquiries  judicial  in  their  nature,  and  by 
statute  certain  other  officers  may  be  removed  by  the  senate  on  recom- 


360  JUDGES. 

A  judge  elected  or  appointed  under  a  constitutional  pro- 
vision fixing  his  term  of  oiiice,  can  not  be  deprived  of  his 
office  by  act  of  the  legislature.' 

Provision  is  made  in  many  of  the  states  for  the  appoint- 
ment or  election  of  a  special  judge,  in  case  of  the  disqual- 
ification or  inability  of  the  regular  judge,  and  such  statu- 
tory provisions  are  usually  held  to  be  constitutional.^  But 
there  are  cases  holding  to  the  contrary.' 

55.  Power  of  legislature  to  impose  other  than  judicial 
DUTIES  ON  judges.  We  have  seen  that  judicial  duties  and 
functions  can  be  performed  only  by  judges  or  courts.* 

mendation  of  the  governor.  1  R.  S.  123,  sec.  41.  I  think  it  would  be 
going  too  far  to  say  that  every  statute  is  necessarily  void  which  involves 
action  on  the  part  of  either  house,  partaking  in  any  degree  of  a  judicial 
character,  if  not  expressly  authorized  by  the  constitution.  Where  the 
statute  relates  to  the  proceedings  of  the  legislative  body  itself,  and  is 
necessary  or  appropriate  to  enable  it  to  perform  its  constitutional  func- 
tions, 1  can  not  regard  it  as  such  an  invasion  of  the  province  of  the  ju- 
diciary as  should  bring  it  within  any  implied  prohibition  of  the  state 
constitution.  That  instrument  contains  no  express  provision  declar- 
ing any  of  the  privileges  of  the  members  of  either  house,  except  that 
for  any  speech  or  debate  in  either  house,  the  members  shall  not  be  ques- 
tioned in  any  other  place.  Even  the  privilege  of  exemption  from  arrest 
during  the  sessions,  is  not  declared.  No  power  to  keep  order  or  to  pun- 
ish members  or  others  for  disorderly  conduct,  or  to  expel  a  member,  is 
contained  in  the  state  constitution,  as  it  is  in  the  Constitution  of  the 
United  States.  All  these  matters  are  in  this  state  left  under  the  regula- 
tions of  the  statutes,  and  there  is  not  even  express  autliority  to  enact 
such  statutes.  1  R.  S.,  chap.  7,  tit.  2.  The  necessity  of  the  powers  men- 
tioned is  apparent,  and  is  conceded  in  all  the  authorities  (see  Cooley's 
Const.  Lim.  133),  yet  it  is  equally  apparent  that  statutes  upon  the  sub- 
ject must  authorize  some  action  partaking  of  a  judicial  cliaracter.  If 
that  feature  is  a  fatal  objection,  it  annuls  all  the  statutory  provisions  in 
which  it  appears."  People  v.  Keeler,  99  N.  Y.  463,  480;  Keeler  v.  Mc- 
Donald, 2  N.  E.  Rep.  615. 

1  People  V.  Dubois,  23  111.  498;  People  v.  Bangs,  24  111.  184;  State  v. 
Leonard,  2  Pickle  (Tenn.),  485;  7  S.  W.  Rep.  453;  People  v.  Garey, 
6  Cow.  (N.  Y.)  642,  645.  But  see  People  v.  Morrell,  21  Wend.  (N.  Y.) 
563. 

'^  Post,  sec'  61  ;  The  State  v.  Williams,  14  W.  Va.  851 ;  Brown  v.  Buzan, 
24  Ind.  194. 

3  Ante,  sec.  28;  Van  Slyke  v.  Trempealeau  Co.  F.  Ins.  Co.,  39  Wis  390; 
20  Am.  Rep.  50. 

*  Ante,  sees.  29,  54. 


POWER    TO    IMPOSE    OTHER    THAN    JUDICIAL    DUTIES.        361 

It  is  equally  well  settled  that  judges,  as  such,  can  not 
be  compelled  to  perform  other  than  judicial  duties.* 

^  Houston  V.  Williams,  13  Cal.  24;  73  Am.  Dec.  565;  Vaughn  v.  Harp, 
49  Ark.  ItJO;  4  S.  W.  Rep.  751 ;  In  re  Griffiths,  118  Ind.  83;  20  N.  E.  Rep. 
513;  Ex  parte  Gans,  17  Fed.  Rep.  471. 

"  If  the  act  assumed  to  require  the  judges  of  the  supreme  court  to 
perform  the  duties  of  the  clerk  by  preparing  entries,  or  to  discharge  the 
duties  of  the  sheriff  by  preparing  returns  for  him,  we  suppose  no  one 
would  hesitate  to  declare  it  void.  The  fact  that  the  officer  whose  duties 
the  act  assumes  to  direct  the  judges  to  perform  is  the  reporter,  and  not 
the  clerk  or  the  sheriff,  can  make  no  difference.  Neither  shade  nor 
semblance  of  difference  can  be  discerned  by  the  keenest  vision  between 
the  cases  instanced  by  way  of  illustration  and  the  real  case.  The  prin- 
ciple which  rules  is  this:  Judges  can  not  be  required  to  perform  any 
other  than  judicial  duties.  This  is  a  rudimental  principle  of  constitu- 
tional law.  To  the  science  of  jurisprudence,  it  is  as  the  axiom  that  the 
whole  is  equal  to  all  its  parts  is  to  the  science  of  mathematics.  There  is 
no  contrariety  of  opinion  upon  this  subject.  There  is  no  tinge  of  reason 
for  asserting  a  different  doctrine.  We  quote  Judge  Cooley's  statement 
of  the  principle,  although  it  is  found  in  a  book  intended  for  beginners, 
because  it  expresses  the  rule  clearly  and  tersely.  This  is  his  statement : 
'  Upon  judges,  as  such,  no  functions  can  be  imposed  except  those  of  a 
judicial  nature.'     Principles  of  Const.  Law,  53. 

"The  authorities  upon  this  point  are  many  and  harmonious.  Hay- 
burn's  case,  2  Dall.  409,  n.;  U.  S.  v.  Ferreira,  13  How.  40,  n.;  Auditor  v. 
Railroad  Co.,  6  Kan.  500;  Supervisors  of  Election,  114  Mass.  247;  Rees 
T.  City,  19  Wall.  107;  Heine  v.  Commissioners,  Id.  655  ;  Smith  r.  Strother, 
8  Pac.  Rep.  852;  Burgoyne  v.  Supervisors,  5  Cal.  9;  People  v.  Town,  6 
Cal.  143 ;  Hardenburgh  r.  Kidd,  10  Cal.  402 ;  McLean  v.  Bank,  81  Ky. 
254;  State  v.  Young,  29  Minn.  429;  9  N.  W.  Rep.  737;  Shepard  v.  City, 
4  S.  E.  Rep.  635. 

"The  preparation  of  the  syllabi  is  an  essential  part  of  the  reporter's 
work.  Head-notes  may  be  copyrighted,  but  the  opinions  of  the  court 
can  not  be.  The  syllabi  or  head-notes  may  be  copyrighted,  because  they 
are  the  work  of  the  reporter,  and  not  of  the  judges.  The  work  is  essen- 
tially and  intrinsically  ministerial,  and  therefore  can  not  be  performed 
by  the  judges  or  the  court.  The  soundness  of  the  rule  stated  by  Judge 
Cooley  is  beyond  controversy,  and  it  is  hardly  necessary  to  go  further, 
since  it  is  conclusive  here.     .     .     . 

"It  is  our  judgment  that  the  petition  brings  before  us  these  three 
questions:  (1)  Can  the  legislature  impose  ministerial  duties  upon  the 
court?  (2)  Can  the  legislature  add  duties  to  those  devolved  upon  the 
judges  by  the  constitution?  (3)  Can  the  legislature,  in  violation  of  the 
constitutional  inhibition,  authorize  the  judges  to  discharge  the  essential 
duties  of  a  reporter?  Upon  these  questions,  we  express  our  judgment, 
and  sustain  the  petitioner's  contention ;  but  we  neither  express  nor  in- 


362 


JUDGES. 


But  in  this  judges  and  courts  differ  in  that  judges  may 
perform  purely  ministerial  functions,  although  not  bound 
to  do  so  because  the  legislative  branch  of  the  government 
has  attempted  to  impose  such  duties  upon  them.^ 

So  a  judge  may  be  chosen  to  act  as  an  arbitrator,  but 
in  such  a  case  he  does  not  act  as  a  judicial  officer,  and  his 
decision  is  not  a  judgment.^ 

But,  as  a  rule,  while  such  duties  may  be  performed  by 
a  judge,  he  is  not  only  not  bound  to  perform  them,  but  if 
he  does,  he  does  not,  in  so  doing,  perform  judicial  func- 
tions. The  nature  of  the  act,  if  ministerial,  is  not  changed 
by  the  fact  that  it  is  done  by  a  judicial  officer.^ 

And  under  the  constitutions  of  some  of  the  states  which 
not  only  sever  the  executive,  legislative,  and  judicial  de- 
partments of  the  government,  but  forbid  the  officers  of 
one  department  to  perform  any  of  the  duties  pertaining  to 
another  department,  it  is- held  that  a  judge  can  not,  even 
where  he  consents  to  do  so,  perform  any  of  the  duties  per- 
taining to  other  than  the  judicial  department.*  And  the 
rule  seems  to  be  the  same  whether  the  constitution  ex- 
pressly forbids  the  act  or  not.^ 

•  In  some  of  the  cases,  these  constitutional  limitations 
have  been  held  to  apply  not  only  to  the  departments  of 
state  government,  but  to  local  municipal  governments  as 
well.^  But  the  great  weight  of  authority  and  reason  is  un- 
doubtedly the  other  way.^ 

timate  an  opinion  upon  any  others,  although  others  are  discussed."  In 
re  Griffiths,  118  Ind.  83 ;  20  N.  E.  Eep.  513. 

1  In  re  Stevens,  83  Cal.  322;  23  Pac.  Rep.  379. 

^  United  States  v.  Ferreira,  13  How.  40. 

3  Ante,  sees.  29,  54;  People  v.  Bush,  40  Cal.  344;  United  States  v.  Fer- 
reira, 18  How.  40. 

*  Dickey  v.  Hurlburt,  5  Cal.  343;  Phelau  v.  San  Francisco,  6  Cal.  532; 
People  V.  Sanderson,  30  Cal.  160 ;  Smith  r.  Strother,  68  Cal.  194 ;  8  Pac. 
Rep.  852 ;  Shepherd  v.  City  of  Wheeling,  30  W.  Va.  479 ;  4  S.  E.  Rep. 
635 ;  Chard  v.  Harrison,  7  Cal.  113. 

'■'  Ante,  sec.  54;  Ex  parte  Cans,  17  Fed.  Rep.  471. 

®  Burgoyne  v.  Board  of  Supervisors,  5  Cal.  9 ;  Phelan  v.  San  Francisco, 
6  Cal.  531. 

'  People  V.  Provines,  34  Cal.  520 ;  Staude  v.  Election  Commissioners, 
61  Cal.  313,  322 ;  Santo  r.  The  State,  2  la.  165,  220 ;  63  Am.  Dec.  487. 

After  a  thorough  review  of  the  earlier  California  cases  holding  to  the 


i 


POWER   TO    IMPOSE    OTHER   THAN   JUDICIAL   DUTIES.        363 

Therefore,  it  is  not  unusual  for  the  legislature  to  impose 
upon  inferior  tribunals,  such  as  county  commissioners,  or 
boards  of  supervisors,  police  judges,  and  others  of  similar 
kinds,  both  judicial,  legislative,  and  executive  duties,  and 

contrary,  the  supreme  court  of  that  state  in  People  v.  Provines,  supra, 
thus  stated  the  views  of  the  court : 

"  We  understand  the  constitution  to  have  been  formed  for  the  pur- 
pose of  estabUshing  a  state  government ;  and  we  here  use  the  term  '  state 
government '  in  contradistinction  to  local,  or  to  county  or  municipal 
governments.  But  by  this  we  do  not  intend  to  be  understood  to  say 
that  local  governments  are  not  within  the  general  plan  of  the  constitu- 
tion, for  such  governments  are  necessary  incidents  to  all  forms  of 
government — using  that  term  in  its  most  enlarged  and  popular  sense — 
in  use  among  civilized  nations.  "What  we  mean  to  be  understood 
as  saying  is,  that  the  constitution  does  not,  of  itself — ex  proprio  vigore — 
create  or  establish  any  local  or  municipal  governments;  but,  assum- 
ing that  such  governments  will  be  required,  provides  that  they 
shall  be  created  and  established  by  the  legislature,  and  there  drops 
the  subject.  'The  legislature  shall  establish  a  system  of  county  and 
town  governments,  which  shall  be  as  nearly  uniform  as  practicable 
throughout  the  state.'  Sec.  4,  Art.  XI.  '  It  shall  be  the  duty  of  the 
legislature  to  provide  for  the  organization  of  cities  and  incorporated  vil- 
lages, and  to  restrict  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  so  as  to  prevent 
abuses  in  assessments  and  in  contracting  debts  by  such  municipal  cor- 
porations.' Sec.  37,  Art.  lY.  '  Each  county,  town,  city,  and  incorporated 
village  shall  make  provision  for  the  support  of  its  own  officers,  subject 
to  such  restrictions  and  regulations  as  the  legislature  may  prescribe.' 
Sec.  9,  Art.  XI.  These  provisions  show  very  clearly  that  the  creation 
and  regulation  of  local  and  subordinate  governments,  such  as  county, 
city,  and  town  governments,  is  not  attempted  in  the  constitution  ;  and 
that  the  whole  subject  of  local  and  subordinate  governments  is,  by  that 
instrument,  turned  over  to  one  branch  of  the  government,  which  it 
provides  and  defines  with  certain  admonitions  only  for  its  guidance. 
When,  therefore,  the  constitution  is  speaking  of  the  '  powers  of  govern- 
ment,' and  engaged  in  the  work  of  distributing  them  to  difierent  de- 
partments, and  securing  absolute  independence  to  each  department  by 
providing  that  each  shall  be  worked  and  managed  by  a  different  set  or 
class  of  individuals,  of  what  government  is  it  talking  ?  Certainly  not 
of  town,  city,  village,  or  county  governments,  which  it  does  not  under- 
take to  organize,  which  are  not  being  established,  but  are  to  be  estab- 
lished hereafter  by  a  body  which  the  constitution  is  at  the  time  creat- 
ing and  organizing.  Obviously  it  is  talking  about  the  government  upon 
which  it  is  at  work,  and  it  is  the  powers  of  that  government  alone  which 
it  is  declaring,  distributing,  and  guarding;  that  is  to  say,  the  state  gov- 
ernment, as  contradistinguished  from  those  which  are  to  be  hereafter 
created  by  legislative  will,  merely,  as  the  incidents  and  auxiliaries  of  the 


364  JUDGES. 

such  legislation  is  upheld  by  the  courts.^  And,  on  the 
same  theory  and  construction  of  the  constitution,  a  judge 
of  a  state  court  may  perform  purely  ministerial  duties  not 
belonging  to  the  functions  of  one  of  the  other  departments 
of  the  state  government.^ 

If  a  judge  attempts  to  perform  functions  belonging  to 
one  of  the  other  departments  of  government,  w^hich  is  for- 
bidden by  the  constitution,  his  acts  are  void.^  And  an  act 
of  the  legislature  attempting  to  confer  upon  a  judge  legis- 

former.  The  departments,  therefore,  of  which  it  speaks,  and  in  respect 
to  which  it  provides  that  no  person  employed  in  one  shall  be  employed 
in  either  of  the  other  two,  ai'e  the  departments  of  the  state  government, 
as  expressly  defined  and  limited  in  the  constitution ;  and  its  meaning  is 
that  no  member  of  the  legislative  department,  as  there  defined,  shall  at 
the  same  time  be  a  member  of  the  executive  or  judicial  departments,  as 
there  defined,  and  vice  versa.  That  is  to  say,  no  judicial  ofiicer  shall  be 
governor,  lieutenant-governor,  secretary  of  state,  controller,  treasurer, 
attorney-general,  or  surveyor-general,  all  of  whom,  and  none  others,  in 
the  sense  of  the  third  article  of  the  constitution,  belong  to  and  consti- 
tute the  executive  department  of  the  government ;  or  a  member  of  the 
senate  or  assembly,  which  two  bodies,  and  none  other,  in  the  sense  of 
the  third  article  of  the  constitution,  constitute  the  legislative  depart- 
ment. So  of  each  officer  of  the  executive  department — he  can  not  be- 
long to  the  judicial  or  legislative  department.  That  is  to  say,  he  can 
hold  no  judicial  office,  nor  the  office  of  senator  or  member  of  the  as- 
sembly. And  so  of  senators  and  members  of  the  assembly — they  can 
hold  no  judicial  or  executive  offices  comprised  within  the  executive  and 
judicial  departments,  as  defined  in  Articles  V  and  VI. 

"  In  short,  the  third  article  of  the  constitution  means  that  the  powers 
of  the  state  government,  not  the  local  governments  thereafter  to  be 
created  by  the  legislature,  shall  be  divided  into  three  departments,  and 
that  the  members  of  one  department  shall  have  no  part  or  lot  in  the 
management  of  the  affairs  of  either  of  the  other  departments,  '  except 
in  the  cases  hereinafter  expressly  directed  or  permitted.'  " 

'  People  V.  Supervisors,  8  Cal.  58;  Bixler  v.  Sacramento,  59  Cal.  698, 
702;  Uridias  v.  Morrill,  22  Cal.  474;  Spring  Valley  Water-Works  v.  Bry- 
ant, 52  Cal.  132;  12  Am.  &  Eng.  Enc.  of  Law,  6,  7,  notes. 

^  People  V.  Provines,  34  Cal.  520.  A  different  rule  was  laid  down  in 
People  V.  Sanderson,  30  Cal.  160,  but  this  case -was  expressly  overruled 
by  Peoples  v.  Provines,  supra. 

*  People  v.  Town  of  Nevada,  6  Cal.  143 ;  Phelan  v.  San  Francisco,  6  Cal. 
531;  Ex  parte  Siebold,  100  U.  S.  371,  398;  United  States  v.  Ferreira,  13 
How.  40 ;  Ex  parte  Gans,  17  Fed.  Rep.  471. 


GENERAL  POWERS  AND  DUTIES  OF  JUDGES.       365 

lative  powers  is  unconstitutional  and  void,  at  least  as  to 
the  parties  affected  by  it.^ 

56.  General  powers  and  duties  of  judges.  The  general 
powers  and  duties  of  judges  are  indicated  by  what  has 
been  said  upon  the  subject  of  constitutional  limitations^^ 
and  of  the  power  of  the  legislature  to  confer  jurisdiction 
and  impose  duties  upon  them.'  Their  duties  are  judicial, 
as  contradistinguished  from  such  duties  as  belong  to  the 
legiskitive  and  executive  departments  of  government,  state 
or  national. 

There  are  certain  of  these  duties  which  must  be  per- 
formed by  the  courts.^  Others  may  be  performed  by  the 
judge  at  chambers  or  in  vacation.^ 

The  general  subject  of  jurisdiction  of  courts,  and  what 
is  necessary  to  constitute  the  judges  such  courts,  has  been 
sufficiently  considered  in  other  sections.^ 

A  duty  imposed  upon  a  judge,  whether  to  be  performed 
when  acting  as  a  court  or  not,  must  be  performed  by  him, 
and  can  not  be  delegated  or  transferred  to  another  person, 
judge,  or  court,  to  be  performed.^  And  if  the  duty  is  im- 
posed by  the  constitution,  its  performance  can  not  be  ex- 
cused or  transferred  to  another  by  legislative  enactment.^ 

Usually  the  duties  and  powers  of  a  judge  cease  with  the 
termination  of  his  term  of  office.  But  this  is  not  always 
so.  It  is  sometimes  provided  by  statute  that  a  judge  may, 
after  his  term  has  expired,  settle  a  bill  of  exceptions  in  a 
cause  tried  before  him.^  And  he  may  be  authorized,  by 
statute,  to  sign  other  papers  necessary  to  make  a  proper 
record  of  a  decision  rendered  by  him  while  in  office.^'' 

So  the  authority  of  a  judge  to  act  is  usually  confined  to 

1  Smith  V.  Strother,  68  Cal.  194 ;  8  Pac.  Rep.  852 ;  Shepherd  v.  City  of 
Wheeling,  30  W.  Va.  479 ;  4  S.  E.  Rep.  635. 

^  Ante,  sec.  29.  '  Ante,  sees.  54,  55.  *  Ante,  sees.  1,  8. 

*  Post,  sees.  58,  59.  «  Ante,  sees.  1,  8,  19. 

'  12  Am.  &  Eng.  Enc.  of  Law,  3;  Alexander  v.  Bennett,  60  N.  Y.  204. 

»  Alexander  v.  Bennett,  60  N.  Y.  204.  But  see  Anderson  v.  Reilly,  66 
N.  Y.  189. 

» Oliver  V.  Town,  24  Wis.  512;  Hale  v.  Haselton,  21  Wis.  325, 

"Johnson  v.  Higgins,  53  Conn.  236;  1  Atl.  Rep.  616. 


366  JUDGES. 

the  district,  circuit,  or  county  over  which  his  jurisdiction 
extends.^  But  there  are  also  exceptions  to  this  rule.  Pro- 
vision is  frequently  made,  by  statute,  by  which  one  judge 
may  act  in  the  district  of  another  judge,  in  which  case  he 
becomes  for  the  time  being  the  judge  of  the  district  in 
which  he  is  acting,  with  all  the  authority  of  the  presiding 
judge,  unless  his  authority  is  limited  by  law,  which  is 
sometimes  the  case.^ 

Sometimes  judges  are  regarded  as  state  and  not  county 
and  district  officers,  with  power,  subject  to  statutory  limit- 
ations or  restrictions,  to  act  any  where  within  the  state.^ 

But  this  is  a  matter  subject  to  constitutional  or  statutory 
regulation,  and  the  authority  of  judges  in  this  respect  is 
not  uniform  in  the  ditferent  states.* 

It  is  held  that  the  power  to  appoint  certain  officers  and 
employees  may  properly  be  conferred  upon  the  courts  or 
judges.^  And  this  is  particularly  so  as  to  its  own  em- 
ployees.^ But,  generally,  the  power  to  appoint  to  office  is 
held  to  be  an  executive  one,  and  not  within  the  authority 
of  judges  or  courts.'^ 

It  has  been  held  that  an  act  of  the  legislature  author- 
izing a  judge  to  fix  the  salary  of  a  reporter  of  the  court, 
for  services  to  be  rendered,  is  unconstitutional,  on  the 
ground  that  the  fixing  of  salaries  is  a  legislative  power.^ 

57.  Power  to  act  in  another  district.— As  a  general 
rule  the  authority  of  judges,  as  well  as  courts,  is  limited 
to  the  district,  circuit,  or  county  over  which  the  court  has 
jurisdiction.^  But  this  is  a  matter  that  is  sometimes 
within  the  control  of  the  legislature,  and  provision  is 
frequently  made  for  the  judge  of  one  district  to  hold  court 
for,  and  sometimes  to   act  generally,  in  the  place  of  the 

^  Ante,  sec.  15.  *  Post,  sees.  57,  61. 

3  Post,  sec.  57 ;  Oliver  v.  Town,  24  Wis.  512. 

*  Wallace  v.  Helena  Electric  Ry.  Co.,  10  Mont.  24 ;  25  Pac.  Kep.  278. 
^  Ex  parte  Siebold,  100  U.  S.  371,  397. 

*  Ante,  sec.  27 ;  In  re  Janitor  Supreme  Court,  35  Wis.  410. 
'  Ante,  sec.  29,  p.  193. 

8  Smith  V.  Strother,  68  Cal.  194 ;  8  Pac.  Rep.  852. 
®  Ante,  sees.  9,  15,  56. 


POWER   TO    ACT    IN   ANOTHER   DISTRICT.  367 

resident  judge  of  another  district,  or  provision  therefor  is 
made  in  the  constitution. 

The  authority  to  act  out  of  his  district  is  sometimes 
held  to  exist  without  any  express  statutory  provision  for 
it,  on  the  ground  that  judges  are  state  officers,  and  may, 
for  that  reason,  perform  certain  of  their  duties  anywhere- 
in  the  state.^  And  in  some  of  the  states  this  is  expressly 
provided  by  statute.^  But  a  diiFerent  rule  has  been  de- 
clared in  some  of  the  states,^  And  this  is  not  generally 
so,  and  particularly  where  the  duty  to  be  performed  is 
some  act  that  must  be  performed  by  a  court,  and  not  by  a 
judge  at  chambers.  Therefore,  provision  is  usually  made, 
by  the  constitution  or  statute,  for  the  calling  in  of  a  judge 
from  another  district  where  the  resident  judge  is  disquali- 
fied or  unable,  for  any  reason,  to  hold  the  court.*  The 
grounds  upon  which  this  may  be  done,  and  the  manner  of 
calling  such  judge  is  considered  in  another  section.^  In 
most  of  the  states  this  is  provided  for  by  the  constitution.^ 
But  in  others  authority  to  provide  for  the  holding  of  courts 
in  the  absence  or  inability  of  the  resident  judge  to  act,  is 
given  to  the  legislature  by  the  constitution.''  Authority  is 
given  to  a  federal  district  judge  to  hold  court  and  perform 
the  duties  of  a  judge  of  another  district,  in  the  state,  by 
statute,  in  case  of  a  vacancy  of  the  office  of  judge  in  such 
other  district.^  Under  this  statute  it  is  held  that  the  ab- 
sence of  the  resident  judge  does  not  authorize  another 
judge  to  act.     There  must  be   a   vacancy  in   the   office.' 

^  Ante,  sec.  56 ;  Oliver  v.  Town,  24  AVis.  512. 

^  State  V.  County  Commissioners,  10  Pac.  Rep.  901. 

^  Wallace  v.  Helena  Electric  Ey.  Co.,  10  Mont.  24 ;  25  Pac.  Rep.  278. 

*  Ante,  sec.  46;  Post,  sees.  61,  62.  *  p^gf^  gg^^  q^ 

«  Eureka  L.  &  Y.  C.  Co.  v.  Superior  Court,  66  Cal.  311 ;  5  Pac.  Rep. 
490;  Empire  Land,  etc.,  Co.  v.  Engley,  14  Colo.  289;  23  Pac.  Rep.  452; 
Gale  V.  Richie,  47  Mo.  326;  Clark  r.  Rugg,  20  Fla.  861  ;  Bear  r.  Cohen, 
65  N.  Car.  511 ;  Wallace  v.  Helena  Electric  Ry.  Co.,  10  Mont.  24 ;  25  Pac. 
Rep.  278;  Daniels  v.  Towers,  79  Ga.  785;  7  S.  E.  Rep.  120;  Munzes- 
heimer  v.  Fairbanks,  82  Tex.  351 ;  18  S.  W.  Rep.  697. 

^  Hughes  V.  Commonwealth,  89  Ky.  227 ;  12  S.  W.  Rep.  269. 

»  Rev.  Stat.  U.  S.,  sec.  603. 

9  Am.  L.  &  T.  Co.  V.  East,  etc.,  R.  Co.,  40  Fed.  Rep.  182. 


368 


JUDGES. 


There  are  other  provisions  for  the  appointment  of  some 
other  judge  to  act,  and  for  the  transfer  of  business  to  the 
circuit  court  in  case  of  the  absence  or  disability  of  the  res- 
ident judge,  or  a  press  of  business  requiring  the  aid  of  an- 
other judge.^  The  judge  appointed  by  the  circuit  judge 
under  these  statutory  provisions  has  the  same  powers  that 
are  vested  by  law  in  the  judge  of  the  district  in  which  he 
is  called  to  act  both  in  the  district  and  circuit  courts,  and 
with  the  same  power  and  limitations  as  to  the  right  to  sit 
or  act  in  the  circuit  court,  in  a  cause  appealed  from  the 
district  court  in  which  he  is  called  to  act.'* 


1  Rev.  Stat.  U.  S.,  sees.  587-602  ;  Harmon  v.  United  States,  43  Fed.  Rep. 
817. 

2  Rev.  Stat.  U.  S.,  sees.  591,  592,  596,  614;  Harmon  v.  United  States,  43 
Fed.  Rep.  817,  818;   United  States  v.  Emholt,  105  U.  S.  414. 

"  It  is  believed  these  are  all  the  statutory  provisions  bearing  directly 
on  this  question.  These  sections  are  to  be  taken  together,  and  con- 
strued as  if  they  were  one  law.  So  construed,  the  law  is,  that  the  dis- 
trict judge  of  one  district,  appointed  to  hold,  and  holding,  a  circuit 
court  in  another  district,  is  invested  with  the  same  powers  that  are 
vested  by  law  in  the  judge  of  the  district  in  which  the  court  is  held,  and 
may  discharge  all  the  judicial  duties  of  such  judge  in  the  circuit  court. 
In  holding  the  circuit  court,  he  sits  as  a  district,  and  not  as  a  circuit 
judge.  The  statute  clothes  him  with  the  jurisdiction  'to  discharge  all 
the  judicial  duties  of  the  judge  '  of  the  district  in  which  the  court  is 
held,  and  not  all  the  judicial  duties  of  a  circuit  judge.  Embarrassment 
may  sometimes  result  from  the  present  state  of  the  law  on  this  subject. 
For  instance,  if  the  district  judge  of  the  district  where  the  court  is 
held,  and  the  district  judge  assigned  to  his  aid  sit  together  in  the  trial  of 
a  cause  in  the  circuit  court,  and  there  is  a  difference  of  opinion  between 
them  as  to  any  question  arising  in  the  trial  of  the  cause,  or  as  to  what 
judgment  shall  be  rendered,  there  is  no  statute  declaring  whose  opinion 
shall  prevail.  There  is  indeed  no  statute  saying  in  terms  that  they  shall 
or  may  sit  together.  Section  592  authorizes  them  to  '  hold  separately, 
at  the  same  time,  a  district  or  a  circuit  court;'  and,  by  section  596,  the 
assigned  judge  is  authorized  '  to  hold  a  district  or  circuit  court  in  the 
l^lace  or  in  aid '  of  the  judge  of  the  district.  The  statute  declares  whose 
opinion  shall  prevail  when  the  court  is  '  held  by  a  circuit  justice  and  a 
circuit  judge,  or  a  district  judge,  or  by  a  circuit  judge  and  a  district 
judge;'  but  no  provision  is  made  for  a  difference  of  opinion  between 
two  district  judges.  Section  650,  Rev.  Stat.  U.  S.  Nor  is  there  any  pro- 
vision for  a  certificate  of  division  of  opinion  between  two  district  judges, 
as  there  is  in  a  case  of  a  difference  of  opinion  between  '  a  circuit  justice 


POWER    TO    ACT    IN    ANOTHER    DISTRICT.  369 

Statutes  authorizing  judges  to  hold  courts  in  districts 
other  than  those  for  which  they  are  elected  are  valid  in 

and  a  circuit  judge,  or  a  district  judge,  or  by  a  circuit  judge  and  a  dis- 
trict judge.'     Sections  652  and  693,  Rev.  Stat.  U.  S. 

"  It  was  early  decided  that  a  district  judge  could  not  sit  in  the  circuit 
court  on  a  writ  of  error  from  his  own  decision  (U.  S.  v.  Lancaster,  3 
Wheat.  434),  and  by  chapter  20  of  the  act  of  the  2d  of  April,  1852  (10  U. 
S.  St.  5),  embodied  in  section  592  of  the  Revised  Statutes,  it  was  en- 
acted, in  reference  to  judges  assigned  to  hold  court  in  districts  other 
than  their  own,  under  that  statute,  that '  no  such  district  judge  shall 
hear  appeals  from  the  district  court.'  But  by  the  later  act  of  ^larch  2, 
1867  (chap.  185,  sec.  2,  14  U.  S.  545),  it  was  provided  that  a  cause  ap- 
pealed from  the  district  to  the  circuit  court  might,  by  consent  of  parties, 
'  be  heard  and  disposed  of  by  the  circuit  court  held  by  the  district  judge,' 
in  the  absence  of  the  associate  justice  allotted  to  the  district.  This  act, 
with  some  others,  is  incorporated  in  section  614  of  the  Revised  Statutes. 
This  act,  the  supreme  court  say,  was  enacted  '  in  order  to  prevent  failure 
or  delay  of  justice.'  U.  S.  v.  Emholt,  105  U.  S.  414.  Under  the  pro- 
visions of  section  614,  a  district  judge  holding  the  circuit  court,  sitting 
alone,  may,  by  consent  of  parties,  hear  and  decide  an  appeal  or  writ  of 
error  from  his  own  decision.  If  the  district  judge  of  the  district,  when 
holding  the  circuit  court,  may  hear  and  decide  an  appeal  or  writ  of 
error  from  the  district  court  by  the  consent  of  the  parties,  undoubtedly 
the  district  judge  assigned  to  hold  the  circuit  court  in  that  district  may  do 
the  same.  The  assigned  judge  is,  as  we  have  seen,  invested  with  all  the 
powers  and  jurisdiction  of  the  judge  of  the  district.  This  includes  the 
power  to  hear  and  decide,  by  consent  of  parties,  any  cause  pending  in 
the  circuit  court  on  appeal  or  writ  of  error  from  the  district  court.  It 
would  be  a  singularly  anomalous  condition  in  the  law  if  the  district 
judge  of  the  district,  holding  a  circuit  court,  could,  by  consent  of  the 
parties,  hear  an  appeal  or  writ  of  error  from  his  own  decision  in  the 
district  court,  and  a  district  judge  of  another  district,  appointed  to  hold 
the  same  circuit  court,  could  not,  by  consent  of  the  parties,  hear  appeals 
and  writs  of  error  from  the  decisions  of  the  judge  of  that  district. 
There  would  seem  to  be  more  reason  for  denying  the  exercise  of  this 
appellate  jurisdiction  to  the  judge  who  decided  the  case  below  than  to 
one  who  had  no  previous  knowledge  of  the  same.  The  parties  have  a 
right  to  have  their  appeal  or  writ  of  error  heard  by  the  circuit  justice  or 
the.circuit  judge,  and  to  have  their  cause  continued  until  such  a  hear- 
ing can  be  had;  but  it  is  competent  for  them,  by  consent,  to  submit  to 
a  hearing  before  the  district  judge  who  tried  the  cause  in  the  district 
court,  or  before  a  district  judge  assigned  to  hold  the  court '  in  the  place 
or  in  aid  of  such  judge."  Harmon  v.  United  States,  43  Fed.  Rep.  817, 
819. 

24 


370 


JUDGES. 


the  absence  of  any  express  constitutional  provision  against 

Where  the  action  to  be  taken  can  only  be  performed  by 
a  court,  it  can  not  be  done  out  of  the  district  or  county  in 
which  the  action  or  proceeding  is  pending,  whether  by 
the  resident  judge  or  the  judge  of  another  district.^ 

It  has  been  held,  howe%'er,  that  a  judge  may  sign  his 
findings  and  order  for  judgment  outside  of  the  territorial 
jurisdiction  of  the  court,  on  the  ground  that  it  is  the  fil- 
ing of  the  same  in  the  proper  place  that  constitutes  the 
decision  and  determination  of  the  case.^  And  also  that  a 
judge  who  has  been  called  to  another  district  to  try  a 
cause  may,  with  the  consent  of  parties,  hear  and  decide  a 
motion  for  a  new  trial  out  of  the  district.* 

So,  a  judge  who  is  authorized  to  vacate  injunctions  in 
vacation  may  make  an  order  therefor  in  a  county  of  his 
circuit  other  than  the  one  in  which  the  injunction  is  pend- 
ing.^ And  usually,  mere  chamber  orders  that  may  be 
made  by  the  judge  are  not  void  because  made  in  another 
county  or  district.  And  in  some  of  the  states,  express 
authority  to  make  such  orders  as  may  be  made  out  of 
court  without  notice  anywhere  in  the  state  is  given  by 
statute.^ 

Where  there  is  but  one  court  in  a  county,  presided  over 
by  a  single  judge,  two  judges  can  not  act  in  matters  pend- 
ing in  such  court  at  the  same  time.  Therefore,  a  judge 
from  another  district  can  not  make  a  valid  order  atiectino: 
a  matter  pending  therein  while  court  is  being  held  by 
the  resident  judge.^  But  where  the  district  is  composed 
of  more  than  one  county,  a  special  term  may  be  held  in 
one   county   by  a   non-resident   judge  while  the  regular 

'  People  V.  McCauley,  1  Cal.  379 ;  Holden  v.  Haserodt,  51  N.  W.  Rep. 
340. 
2  Bennett  v.  Southard,  35  Cal.  688. 
'^  Comstock  Q.  M.  Co.  v.  Superior  Court,  57  Cal.  625. 
*  Chessman  v.  Hart,  42  Fed.  Rep.  98,  105. 

5  Hayzlett  y.  McMillen,  11  W.  Va.  464;  Horn  v.  Perry,  11  W.  Va.  694. 

6  State  V.  Black,  34  S.  Car.  194;  13  S.  E.  Rep.  361,  364. 

7  People  V.  O'Neil,  47  Cal.  109.  Jl 


POWER    TO    ACT    IN    ANOTHER    DISTRICT.  371 

term  is  being  held  in  another  county  by  the  resident 
judge.^ 

Where  a  cause  is  tried  by  the  judge  of  another  district, 
it  will  be  presumed,  in  the  absence  of  any  showing  in  the 
record  to  the  contrary,  that  such  judge  was  properly 
called  to  preside,  and  that  sufficient  reason  therefor  ex- 
isted.^ 

In  calling  a  judge  from  another  district  to  preside,  the 
law  authorizing  it  must  be  complied  with.  But  where 
such  a  proceeding  is  authorized  by  law  and  such  judge  is 
actually  called,  the  question  whether  he  was  properly 
called  can  not  be  raised  collaterally.^ 

It  has  been  held  that,  under  a  constitutional  provision 
authorizing  a  judge  to  "  hold  court"  in  another  district, 
such  judge  has  no  power  or  authority  to  perform  the  gen- 
eral duties  of  the  office  of  judge  in  the  district  to  which 
he  is  called,  and  that  therefore  he  can  not  make  valid 
orders  at  chambers.*  So  it  is  held  that  authority  given  to 
call  a  judge  to  hold  a  terra  of  court  does  not  authorize 
such  judge  to  be  called  to  hold  a  part  of  a  term  or  to  try 
a  particular  case.^  But  where  the  constitution  authorizes 
a  judge  to  "hold  court"  in  another  district,  and  does  not 
forbid  his  performing  any  other  duty,  an  act  of  the  legis- 
lature extending  his  authority  to  other  acts,  either  in  sucli 
other  district  or  in  his  own  district  to  take  eftect  in  the 
other,  is  not  unconstitutional.^  And  in  most  of  the  states, 
the  judge  who  is  called  in  takes  the  place  of  the  resident 
judge,  and  assumes  and  performs  all  of  the  duties  pertain- 
ing to  the  office,  unless  his  appointment  and  authority  to 
act  is  limited  to  some  specific  duties.     The  authority  of 

'  Munzesheimer  v.  Fairbanks,  82  Tex.  351 ;  18  S.  W.  Rep.  697. 

^  People  V.  Mellon,  40  Cal.  648,  655;  Empire  Land,  etc.,  Co.  v.  Engley, 
14  Colo.  289 ;  23  Pac.  Rep.  452 ;  Daniels  v.  Towers,  79  Ga.  785 ;  7  S.  E. 
Rep.  120. 

■•'  Po&t,  sees.  60,  61  ;  People  v.  Mellon,  40  Cal.  648,  655. 

♦  Wallace  r.  Helena  Electric  Ry.  Co.,  10  Mont.  24;  24  Pac.  Rep.  626; 
25  Pac.  Rep.  278. 

^  Gale  V.  Michie,  47  Mo.  326. 

«  Holden  v.  Haserodt,  51  N.  W.  Rep.  340.  See  also  Hughes  v.  Com- 
monwealth, 89  Ky.  227;  12  S.  W.  Rep.  269. 


372  JUDGES. 

the  resident  judge  is,  for  the  time  being,  wholly  suspended, 
^ud  no  action  can  be  taken  by  him.^ 

As  has  been  said,  however,  this  question  must  necessa- 
Tily  turn  upon  the  provisions  of  the  constitutions  or  stat- 
utes, as  the  case  may  be,  of  the  difterent  states.  And  the 
cases  cited  turn  mainly  upon  the  language  used  in  the  law 
of  each  state  authorizing  the  exercise  of  jurisdiction  by  a 
judge  out  of  his  district. 

A  bill  of  exceptions  must  be  settled  and  signed  by  the 
judge  who  tried  the  cause,  although  such  judge  is  a  non- 
resident and  has  returned  to  his  own  district.^  And  the 
resident  judge  may  settle  and  sign  a  bill  of  exceptions  out 
of  the  circuit  or  district  for  which  such  judge  was  elected 
and  in  which  the  cause  was  tried.' 

A  judge  can  exercise  no  judicial  functions  out  of  the 
state."  His  authority  is  defined  by  the  constitution  and 
laws  of  the  state,  which  can  have  no  extra-territorial  opera- 
tion.* 

58.  AuTHOKiTY  AT  CHAMBERS.  A  difference  is  almost 
universally  recognized  between  such  duties  as  must  be 
performed  by  a  court  and  those  which  may  be  performed 
by  a  judge.  Generally,  all  acts  that  are  required  to  be 
done  by  a  court  must  be  done  in  term  time  and  when  the 
judge  is,  or,  if  the  court  is  composed  of  more  than  one 
judge,  a  majority  of  the  judges  are,  in  attendance,  at  the 
time  and  in  the  place  provided  by  law  and  duly  and  le- 
gally organized  as  a  court.^     But  exceptions  to  this  rule 

>  Clark  V.  Rugg,  20  Fla.  861 ;  Bear  v.  Cohen,  65  N.  Car.  511 ;  Hughes  v. 
Commonwealth,  89  Ky.  227;  12  S.  W.  Rep.  269;  Morriss  v.  Virginia  Ins. 
Co.,  85  Va.  588;  8  S.  E.  Rep.  383. 

''Empire  Land,  etc.,  Co.  v.  Engley,  14  Colo.  289;  23  Pac.  Rep.  452; 
King  Co.  V.  Hill,  1  Wash.  St.  63;  23  Pac.  Rep.  926. 

3  Oliver  v.  Town,  24  Wis.  512.  "  Payless  r.  Price,  31  N.  E.  Rep.  88. 

*  Ante,  sees.  1,  19;  State  v.  County  Com'rs,  10  Pac.  Rep.  901,  909;  Wash- 
ington &  I.  R.  Co.  r.  Coeur  D'Alene  Ry.  &  Nav.  Co.,  28  Pac.  Rep.  394; 
Laroo  v.  Casaneuava,  30  Cal.  561,  564  ;  Norwood  v.  Kenfield,  34  Cal.  329; 
Bowman  v.  Venice,  etc.,  Ry.  Co.,  102  111.  459,467  ;  Newman  v.  Hammond, 
46  Ind.  119;  Conkling  v.  Ridgely,  112  111.  36;  54  Am.  Rep.  204;  Ling  v. 
King,  91  111.  571. 


AUTHORITY    AT    CHAMBERS.  373 

have  apparently  been  made,  by  statutes,  in  some  states. 
Thus  a  judge  is  sometimes  authorized  to  decide  a  case  and 
enter  judgment  therein  at  chambers  and  in  vacation.^ 

Such  statutes,  however,  are  exceptional  and  rare. 
They  have  been  upheld  where  there  is  no  constitutional 
provision  withholding  the  power.^  But,  by  the  provisions 
of  most  of  the  state  constitutions  at  the  present  day,  such 
jurisdiction  can  only  be  exercised  by  courts,  and  not  by 
judges. 

The  dividing  line  between  such  orders  and  other  acts  as 
may  be  made  and  performed  by  a  judge  at  chambers  and 
those  which  must  be  made  or  done  by  a  court  regularly 
sitting  as  such,  can  not  be  clearly  and  definitely  defined  or 
traced.' 

So  the  acts  that  may  be  done  at  chambers  are  usually 
provided  for  specially  by  statute.  And,  under  some  of 
the  decisions,  they  must  be,  as  it  is  held  that  a  judge  at 
chambers  has  only  such  power  and  authority  to  transact 
judicial  business  as  are  expressly  conferred  upon  him  by 
statute.* 

Jurisdiction  at  chambers  is  incidental  to  the  jurisdiction 
of  the  court  itself,  and  can  only  be  exercised  by  the  judge 
in  a  matter  over  which  the  court  has  jurisdiction.^     And, 

1  State  V.  Meyers,  44  la.  580;  McLane  v.  Granger,  74  la.  152;  37  N.  W. 
Rep.  123 ;  Brewster  v.  Hartley,  37  Cal.  15 ;  99  Am.  Dec.  237. 

2  Brewster  v.  Hartley,  37  Cal.  15,  23 ;  99  Am.  Dec.  237. 

'  Walters  v.  Anglo-American  Mortgage  and  Trust  Co.,  50  Fed.  Rep. 
316,  317 ;  ante,  sec.  19. 

*  Laroo  v.  Casaneuava,  30  Cal.  561,  564;  Norwood  v.  Kenfield,  34  Cal. 
329;  Ellis  r.  Karl,  7  Neb.  381 ;  Ferger  v.  Wesler,  35  Ind.  53. 

^  Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  r.  Hurd,  17  Ohio  St.  144;  Walters  v. 
Anglo-American  Mortgage  and  Trust  Co.,  50  Fed.  Rep.  316. 

"  It  is  claimed  that  the  18th  section  of  the  4th  article  of  the  constitu- 
tion authorizes  the  legislature  to  confer  upon  a  single  judge  of  this  court 
the  jurisdiction,  the  exercise  of  which  is  now  invoked.  That  section 
reads  thus:  'The  several  judges  of  the  supreme  court,  of  the  common 
pleas,  and  of  such  other  courts  as  may  be  created,  shall,  respectively, 
have  and  exercise  such  power  and  jurisdiction,  at  chambers,  or  otherwise, 
as  may  be  directed  by  law.' 

"  This  section  divides  the  powers  which  may  be  conferred  by  law  on  the 
several  judges  into  two  classes;  according  as  its  subject-matter  makes  it 


374  JUDGES. 

where  judicial  power  is  vested  by  tlie  constitution  in 
courts,  it  can  not  be  exercised  by  a  judge  at  chambers, 
under  an  act  of  the  legislature  attempting  to  authorize  it, 
or  otherwise.^ 

a  jurisdiction  to  be  exercised  'at  chambers,'  or  to  be  exercised  ^other- 
wise.' 

"  The  phrase  '  at  chambers  '  is  a  technical  one.  The  term  '  chambers ' 
is  thus  defined  by  Burrill:  'The  office  or  private  rooms  of  a  judge, 
where  the  parties  are  heard  and  orders  made,  in  matters  not  requiring 
to  be  brought  before  the  full  court,  and  where  costs  are  taxed,  judg- 
ments signed,  and  similar  business  transacted.'  Burrill's  L.  Die.  And 
thus  by  Bouvier:  '  When  a  judge  decides  some  interlocutory  matter, 
which  has  arisen  in  the  course  of  the  cause,  out  of  court,  he  is  said  to 
make  such  decision  at  his  chambers.'     Bouvier's  L.  Die. 

"  This  phrase,  as  used  in  the  constitution,  is  to  be  understood  in  this, 
its  ordinary,  sense.  And  we  are  clearly  of  opinion  that  the  jurisdiction 
now  invoked,  and  which  is  supposed  to  liave  been  conferred  by  statute, 
is  one  to  be  exercised,  if  at  all,  'at  chambers.'  For,  a  single  judge  of 
this  court  is  asked,  out  of  court,  to  dissolve  an  injunction  now  subsist- 
ing in  a  cause  still  pending  in  the  court  of  common  pleas.  An  order 
thus  made  out  of  court,  in  a  cause  pending  in  a  court,  is,  ex  vi  termini, 
the  exercise  of  jurisdiction  '  at  chambers,'  and  not  '  otherwise.'  Now, 
the  provision  of  the  constitution  is,  that  the  several  judges  of  this  court 
shall  have  and  exercise  such  power  and  jurisdiction  at  chambers  as  may 
be  directed  by  law;  and  the  question  arises,  whether  a  capacity  is 
thereby  conferred  on  the  members  of  this  court  to  receive  at  the  hands 
of  the  legislature  a  chamber  jurisdiction  in  causes  pending  in  other 
courts,  of  which  the  judges  of  this  court  are  not  members.  We  all  con- 
cur in  answering  this  question  in  the  negative.  Jurisdiction  at  cham- 
bers is  incidental  to  and  grows  out  of  the  jurisdiction  of  the  court  itself. 
It  is  the  power  to  hear  and  determine,  out  of  court,  such  questions  aris- 
ing between  the  parties  to  a  controversy  as  might  well  be  determined  by 
the  court  itself,  but  which  the  legislature  has  seen  fit  to  intrust  to  the 
judgment  of  a  single  judge,  out  of  court,  without  requiring  them  to  be 
brought  before  the  court  in  actual  session.  It  follows,  that  the  jurisdic- 
tion of  a  judge  at  chambers  can  not  go  beyond  the  jurisdiction  of  the 
court  to  which  he  belongs,  or  extend  to  matters  with  which  his  court  has 
nothing  to  do.  And  the  constitution,  in  granting  such  jurisdiction  at 
chambers  to  the  judges  of  the  several  courts  of  the  state  as  may  be  di- 
rected by  law,  is  to  be  understood  as  limiting  the  jurisdiction  of  each  to 
such  subject-matters  as  are  within  the  jurisdiction  of  his  proper  court, 
and  to  which  it  is,  ex  vi  termini,  limited."  Pittsburg,  Ft.  W.  &  C.  R.  Co. 
V.  Hard,  17  Ohio  St.  144,  146. 

^  Ante,  sees.  19,  57 ;  post,  sec.  59;  Bowman  v.  Venice,  etc.,  Ry.  Co.,  102 
111.  459,  467;  Spencer  Creek  Water  Co.  r.  Vallejo,  48  Cal.  70;  Fergerv. 
Wesler,  35  Ind.  53  ;  Newman  v.  Hammond,  46  Ind.  119. 


i 


i 


AUTHORITY   AT    CHAMBERS.  375 

But  by  long-established  usage,  at  common  law,  and  in- 
dependently of  legislative  authority,  the  judges  of  the 
courts  of  general  jurisdiction  exercised  extensive  jurisdic- 
tion at  chambers.'  This  applies  to  courts  of  equity  and, 
therefore,  to  the  federal  courts  and  judges  acting  in  chan- 
cery suits.^  And  it  is  held  that  under  a  state  constitution' 
conferring  general  jurisdiction,  the  judges  take  the  powers 
of  judges  of  such  courts  at  common  law,  including  the 
power  possessed  by  them  at  chambers,  at  the  time  the 
constitution  was  adopted.^ 

This  general  usage,  giving  judges  of  courts  of  general 
common  law  or  equity  jurisdiction  power  to  act  at  cham- 
bers, has  no  application  to  special  powers  granted  by 
statute.* 

A  constitutional  provision  authorizing  a  judge  to  "hold 
court"  in  another  district  has  been  held  not  to  authorize 
him  to  exercise  the  powers  of  the  resident  judge  at  cham- 
bers.^    But  usually  a  judge  authorized  to  act  in  another 

1  12  Am.  &  Eng.  Enc.  of  Law,  16;  Conroe  v.  Bull,  7  Wis.  408,  412;  In 
re  Kindling,  39  Wis.  35,  58. 

^"For  many  purposes  the  circuit  courts  of  the  United  States,  as 
courts  of  equity,  are  always  open.  Equity  Rules  1,  3,  4.  The  authority 
of  a  judge  at  chambers  is  the  authority  of  the  court  itself.  Per  Tindal, 
C.  J.,  Doe  dem.  Prescott  v.  Roe,  9  Bing.  104.  The  practice  and  the  juris- 
diction of  the  judge  at  chambers  in  chancery  suits  is,  in  many  instances, 
so  intimately  blended  and  incorporated  with  the  practice  and  jurisdic- 
tion of  the  court  that  it  is  sometimes  difficult  to  separate  the  one  from 
the  other.  The  exercise  of  chambers  jurisdiction  in  equity  cases  is  ab- 
solutely essential  for  the  purpose  of  preventing  the  delay,  injustice,  ex- 
pense, and  inconvenience  which  must  inevitably  ensue  if  applications 
for  relief  had  to  be  made  in  all  cases  to  the  court  in  session.  A  motion 
to  discharge  a  receiver  may  be  heard  at  chambers,  upon  due  notice,  and 
will  be  granted  when  it  appears  that  he  was  improvidently  appointed, 
or  that  there  is  any  other  sufficient  reason  for  his  discharge.  Railroad 
Co.  V.  Sloan,  31  Ohio  St.  1  ;  Crawford  r.  Ross,  39  Ga.  44 ;  Beach,  Rec. 
sec.  778."  Walters  v.  Anglo-American  Mortgage  and  Trust  Co.,  50  Fed. 
Rep.  316,  317. 

^  In  re  Kindling,  39  Wis.  35,  58. 

*  Conroe  v.  Bull,  7  Wis.  408,  412;  Spencer  Creek  Water  Co.  v.  Vallejo, 
48  Cal.  70.  , 

^  Ante,  sec.  57;  Wallace  v.  Helena,  etc.,  Ry.  Co.,  10  Mont.  24;  24  Pac. 
Rep.  626 ;  25  Pac.  Rep.  278. 


376  JUDGES. 

district  is  held  to  possess  all  of  the  powers  of  the  resident 
judge  for  the  time  being.^  And  a  constitutional  provision 
authorizing  judges  to  "hold  court"  in  another  district 
does  not  prevent  the  legislature  from  conferring  upon 
such  judges  the  power  to  act  at  chambers  in  another  dis- 
trict.2 

Statutory  provisions  are  usually  enacted  authorizing  a 
judge  at  chambers  to  grant  orders  of  arrest,  mandamus, 
attachment,  injunctions,  and  all  orders  relating  thereto, 
to  appoint  and  discharge  receivers,  and  other  like  pro- 
ceedings and  writs  made  on  ex  parte  application,  not  in- 
volving the  trial  of  a  cause  on  its  merits  and  in  which 
immediate  action  is  necessary  for  the  protection  of  liti- 
gants.^ 

A  judge  can  not  issue  an  injunction  to  operate  beyond 
his  district  or  the  district  in  which  he  is  acting.* 

59.  Authority  to  act  in  vacation. — The  subject  of  terms 
of  court,  as  affecting  jurisdiction,  has  been  considered. 
And  what  will  constitute  a  vacation  of  a  court  received 
attention  in  that  connection.^ 

The  authority  of  judges  at  chambers  is  generally  inde- 
pendent of  terms  of  court,  and  may  be  exercised  in  vaca- 
tion.^ And,  usually,  no  act  of  jurisdiction  that  is  required 
to  be  performed  by  a  court  can  be  exercised  by  a  judge  in 
vacation.^     But,  independently  of  any  constitutional  pro- 

>  Ante,  sec.  57;  post,  sec.  61. 

^  H olden  v.  Haserodt,  51  N.  W.  Rep.  340. 

'  State  V.  Shakespeare,  6  Sou.  Rep.  514;  Ellis  v.  Karl,  7  Neb.  381 ;  Real 
Estate  Ass'n  v.  San  Francisco,  60  Cal.  223,  227;  County  Court  of  Glou- 
cester Co.  V.  County  Court  of  Middlesex  Co.,  14  S.  E.  Rep.  660 ;  Ham- 
mack  V.  Loan  and  Trust  Co.,  105  U.  S.  77. 

*  State  V.  Michaels,  8  Blackf.  (Ind.)  436. 

5  Ante,  sec.  19;    Conkling  v.  Ridgely,  112  111.  36,  42;  54  Am.  Rep.  204. 

«  Ante,  sees.   19,  57,  58. 

^  Ante,  sees.  19,  58;  Newman  r.  Hammond,  46  Ind.  119;  Ferger  v. 
Wesler,  35  Ind.  53;  Conkling  r.  Ridgely,  112  111.  36;  54  Am.  Rep.  204; 
Ungv.  King,  91  111.  571;  Chase  v.  Miller,  88  Va.  791;  14  S.  E.  Rep.  545; 
Blair  V.  Reading,  99  111.  600,  609;  Hammock  v.  Loan  and  Trust  Co.,  105 
U.  S.  77;  Sargent  v.  Roberts,  1  Pick.  337;  11  Am.  Dec.  185;  RaflFerty  v. 
People,  72  111.  37,  47. 


AUTHORITY    TO    ACT    IN    VACATION.  377 

vision  forbidding  it,  the  legislature  may  authorize  the  per- 
formance of  judicial  duties,  falling  within  the  duties  of 
courts,  by  judges,  at  chambers,  in  vacation.^ 

But  such  authority  is  almost  universally  denied  to  the 
judges,  at  the  present  day,  by  constitutional  provisions.^ 
And  judges  can  not^  although  not  prohibited  from  doing 
so  by  the  constitution,  perform  the  functions  of  a  court  in 
vacation,  unless  expressly  authorized  to  do  so  by  statute.^ 

The  mere  entry  of  a  judgment  is  not  a  judicial  act,  and 
may  be  performed  in  vacation  and  by  the  clerk.^ 

Although  terms  of  court  may  be  provided  for  generally, 
the  legislature  may  provide  that  for  the  transaction  of 
business  of  an  urgent  character,  the  court  shall  be  open  at 
all  times,  and  under  such  legislation,  the  court  may  act 
with  reference  to  such  business  during  what  is,  as  to  other 
business,  vacation.  But  this  is  not  the  act  of  a  judge  in 
vacation,  but  of  the  court.''  And  where  a  judge  is  au- 
thorized to  appoint  a  receiver  or  perform  other  like  judicial 
acts,  it  is  held  that  his  acts,  orders,  and  proceedings,  al- 
though had  in  vacation,  are  the  judicial  proceedings  of  the 
court  whereof  he  is  judge.  This,  however,  is  based  upon 
the  ground  that  the  words  "judge"  and  "court"  are,  as 
used  in  the  statute  authorizing  the  appointment  of  a  re- 
ceiver in  vacation,  synonymous.^ 

'  Ante,  sec.  58;  Brewster  v.  Hartley,  37  Cal.  15,  23;  99  Am.  Dec.  237  ; 
McMurtry  v.  Tuttle,  13  Neb.  232;  13  N.  W.  Rep.  213;  Morris  v.  Virginia 
Ins.  Co.,  85  Va.  588 ;  8  S.  E.  Rep.  383. 

2  Ante,  sec.  58. 

3  Norwood  V.  Kenfield,  34  Cal.  329;  Chase  v.  Miller,  88  Va.  791 ;  14  S. 
E.  Rep.  545;  Hammock  v.  Loan  and  Trust  Co.,  105  U.  S.  77;  Blair  v. 
Reading,  99  111.  600,  609  ;  12  Am.&  Eng.  Enc.  of  Law,  14;  Bynum  v.  Com- 
missioners Burke  Co.,  97  N.  Car.  374 ;  2  S.  E.  Rep.  170. 

*  Durham  v.  Brown,  24  111.  93;  Ling  v.  King,  91  III.  571 ;  Conkling  v. 
Ridgely,  112  111.  36,  44;  54  Am.  Rep.  204. 

^Bowman  v.  Venice,  etc.,  Ry.  Co.,  102  111.  459;  Bynum  v.  Commis- 
sioners Burke  Co.,  97  N.  Car.  374;  2  S.  E.  Rep.  170. 

«  Pressly  v.  Lamb,  105  Ind.  171,  185;  4  N.  E.  Rep.  682. 

In  this  case  the  court  said  : 

"When  the  judge  of  a  court,  in  vacation,  is  engaged  in  doing  these 
acts  and  making  these  orders,  it  is  clear,  we  think,  that  he  is  exercising 
quoad  hoc  '  the  judicial  power  of  the  state,'  and  that  his  acts,  orders,  and 
proceedings  in  the  premises,  although  had  in  vacation,  are  the  judicial 


378  JUDGES. 

As  a  rule,  all  orders  tliat  may  be  made  or  proceedings 
had  at  chambers  may  be  made  or  had  iu  vacation.^ 

proceedings  of  the  court  whereof  he  is  judge.  In  section  1,  of  article  7, 
of  our  State  Constitution  of  1851,  as  such  section  was  amended  March 
14,  1881,  it  is  provided  as  follows:  'The  judicial  power  of  the  state 
shall  be  vested  in  a  supreme  court,  in  circuit  courts,  and  in  such 
other  courts  as  the  general  assembly  may  establish.'  Section  161,  R.  S. 
1881. 

In  Shoultz  V.  McPheeters,  79  Ind.  373,  after  quoting  this  section  of 
the  constitution,  the  court  said:  'AH  judicial  powers  are,  by  force  of 
this  provision,  vested  in  the  courts  of  the  state.  The  legislature  has  no 
authority  to  invest  any  other  tribunals  than  the  courts  with  judicial 
powers.  It  is  certain  that  the  legislature  can  not  exercise  judicial 
powers.  Columbus,  etc.,  Ry.  Co.  v.  Board,  etc.,  65  Ind.  427;  Doe  v. 
Douglass,  8  Blackf.  10;  Young  v.  State  Bank,  4  Ind.  301.  Nor  can  these 
powers  be  vested  elsewhere  than  in  the  tribunals  designated  or  indi- 
cated by  the  constitution.  Judicial  powers  can  not  be  delegated.'  Ac- 
cordingly, it  was  held  in  the  case  cited,  that  section  1404,  R.  S.  1881, 
wherein  it  was  attempted  to  confer  judicial  power  upon  master  commis- 
sioners in  certain  cases,  was  unconstitutional  and  void.  So,  also,  in 
Gregory  v.  State  ex  rel.,  94  Ind.  384  (48  Am.  R.  162),  it  was  held,  in  view 
of  the  constitutional  provision  above  quoted,  that  judicial  power  can 
not  be  conferred  by  statute  upon  the  clerks  of  courts. 

It  is  true,  however,  that,  in  a  legal  sense,  the  judge  of  a  court  is  the 
court ;  certainly,  there  can  be  no  court,  under  our  laws,  constitutional 
or  statutory,  without  a  judge.  Rogers  v.  Beauchamp,  102  Ind.  33; 
Shoultz  ('.  McPheeters,  supra.  So  nearly  akin  are  the  two  words,  'court' 
and  '  judge,'  in  legal  parlance,  that,  as  they  are  used  in  the  sections  of 
the  code  now  under  consideration,  they  may  well  be  regarded  as 
synonyms,  each  of  the  other.  Michigan,  etc.,  R.  R.  Co.  v.  Northern 
Ind.  R.  R.  Co.,  3  Ind.  239,  on  p.  245. 

It  is  in  this  legal  sense,  we  think,  that  the  words  'judge  thereof  in 
vacation,'  so  often  mentioned  in  the  sections  of  the  code  before  referred 
to,  relating  to  receivers,  should  be  taken  and  understood  to  mean  '  court 
in  vacation.'  In  other  words,  the  phrase,  'the  court,  or  the  judge 
thereof  in  vacation,'  so  often  found  in  those  sections,  by  supplying  or 
filling  a  manifest  ellipsis  and  the  interchange  of  synonyms,  may  be  made 
to  read,  in  strict  accordance  with  the  legislative  intent,  and  in  perfect 
harmony  with  the  constitutional  provision  above  quoted,  as  follows: 
The  court  when  in  lawful  session,  or  the  court  in  vacation;  or  thus: 
The  judge  in  term,  regular,  adjourned,  or  special,  or  the  judge  in  vaca- 
tion." 

See,  also,  on  this  point,  McMurtry  v.  Tuttle,  13  Neb.  232;  13  N.  W. 
Rep.  213. 

'  Ante,  sec.  58 ;  Hayzlett  v.  McMillan,  11  W.  Va.  464 ;  Horn  v.  Perry,  11 
W.  Va.  694. 

As  to  what  orders  may  be  made  at  chambers,  see  ante,  sec.  58. 


DE  JURE  AND  DE  FACTO  JUDGES.  379 

60.  De  jure  and  DE  FACTO  JUDGES.  The  subject  of  de 
facto  courts,  which  bears  upon  the  question  now  to  be 
taken  up,  has  been  touched  upon  in  another  section.^ 

An  officer  de  facto  is  one  who  is  claiming  the  right  to 
hold  the  office  and  is  performing  the  duties  thereof  under 
such  claim,  either  under  color  of  title  or  with  the  knowl- 
edge and  acquiescence  of  the  public.^ 

It  will  be  seen  that  most  of  the  definitions  given  of  an 
officer  de  facto  exclude  the  element  of  color  of  right  or 

'  Ante,  sec.  28. 

^  "An  officer  de  facto  is  one  who  has  the  reputation  of  being  the  officer 
he  assumes  to  be  and  yet  is  not  a  good  officer  in  point  of  law."  Parker 
V.  Kett,  1  Ld.  Raym.  658;  Cromer  v.  Boinest,  27  S.  Car.  436;  3  S.  E.  Rep. 
849 ;  Hamlin  v.  Kassafer,  15  Or.  456 ;  15  Pac.  Rep.  778 ;  Ex  parte  Strang, 
21  Ohio  St.  610,  617. 

"An  officer  de  facto  is  one  who  exercises  the  duties  of  an  officer  un- 
der color  of  an  appointment  or  election  to  that  office,  or  who  has  the 
reputation  of  being  the  officer  he  assumes  to  be.  He  differs,  on  the  one 
hand,  from  a  mere  usurper  of  an  office,  who  undertakes  to  act  as  an 
officer  without  color  of  right ;  and,  on  the  other,  from  an  officer  de  jure, 
who  is,  in  all  respects,  legally  appointed  and  qualified  to  exercise  the 
office."     12  Am.  &  Eng.  Enc.  of  Law,  23. 

"A  definition  sufficiently  accurate  and  comprehensive  to  cover  the 
whole  ground  must,  I  think,  be  substantially  as  follows:  An  officer  de 
facto  is  one  whose  acts,  though  not  those  of  a  lawful  officer,  the  law, 
upon  principles  of  policy  and  justice,  will  hold  valid  so  far  as  they 
involve  the  interests  of  the  public  and  third  persons,  where  the  duties 
of  the  office  were  exercised: 

"  First,  without  a  known  appointment  or  election,  but  under  such  cir- 
cumstances of  reputation  or  acquiescence  as  were  calculated  to  induce 
people,  without  inquiry,  to  submit  to  or  invoke  his  action,  supposing 
him  to  be  the  officer  he  assumed  to  be. 

"  Second,  under  color  of  a  known  and  valid  appointment  or  election, 
but  where  the  officer  had  failed  to  conform  to  some  precedent,  require- 
ment, or  condition,  as  to  take  an  oath,  give  a  bond,  or  the  like. 

"Third,  under  color  of  a  known  election  or  appointment,  void  because 
the  officer  was  not  eligible,  or  because  there  was  a  want  of  power  in  the 
electing  or  appointing  body,  or  by  reason  of  some  defect  or  irregularity 
in  its  exercise,  such  ineligibility,  want  of  power,  or  defect  being  un- 
known to  the  public. 

"  Fourth,  under  color  of  an  election  or  appointment  by  or  pursuant  to 
a  public  unconstitutional  law,  before  the  same  is  adjudged  to  be  such. 

"Any  thing  less  comprehensive  and  discriminating  will,  I  think,  be  im- 
perfect and  deceptive  as  a  definition."  State  v.  Carroll,  38  Conn.  449;  9 
Am.  Rep.  409;  State  v.  Lewis,  107  N.  Car.  967 ;  12  S.  E.  Rep.  457. 


380  JUDGES. 

title  as  being  absolutely  requisite,  and  the  weight  of  the 
decisions  seems  to  be  that  it  is  not  requisite.^ 

The  better  rule  seems  to  be  that  the  party  who  relies 

^  "  The  question  as  to  what  will  constitute  a  de  facto  officer  has  been 
the  subject  of  judicial  inquiry  in  very  many  cases,  both  in  England  and 
in  this  country,  and,  while  it  must  be  admitted  that  there  is  some  con- 
flict of  opinion,  it  seems  to  us  that  the  weight  of  authority,  as  well  as 
argument,  is  against  the  view  contended  for  by  the  appellant.  Accord- 
ing to  that  view,  as  we  understand  it,  the  mere  fact  that  one  is  found  in 
the  exercise  of  the  duties  of  an  office,  without  question  of  his  authority 
as  such,  is  not  sufficient  to  constitute  him  a  de  facto  officer,  unless  he  is 
in  such  office  by  some  color  of  right  or  title,  even  though  he  may  be 
apparently  invested  with  all  the  insignia  of  office. 

"  The  de  facto  doctrine  rests  upon  considerations  of  public  policy  and 
necessity.  It  was  introduced  into  the  law  for  the  purpose  of  protecting 
the  interests  of  the  public,  as  well  as  those  of  private  individuals,  where 
those  interests  were  involved  in  the  official  acts  of  one  who  may  be 
found  exercising  the  duties  of  an  office,  though  without  lawful  author- 
ity. Hence,  where  a  person  is  called  upon  to  deal  with  such  an  officer, 
he  is  not  bound  to  inquire  whether  his  title  to  the  office  is  good ;  and  for 
a  like  reason  it  seems  to  us  that  he  should  not  be  required  to  inquire 
whether  such  title  is  colorable.  In  fact,  he  is  not  called  upon  to  inquire 
into  the  title  of  such  an  officer  at  all,  but  may  safely  assume  that  he  is 
what  he  appears  to  be,  and  what  the  public  generally  regard  him  to  be. 
As  said  by  Devens,  J.,  in  Petersilea  v.  Stone,  119  Mass.  465;  20  Am.  Eep. 
335,  'third  persons,  from  the  nature  of  the  case,  can  not  always  investi- 
gate the  right  of  one  assuming  to  hold  an  important  office,  even  so  far 
as  to  see  that  he  has  color  of  title  to  it  by  virtue  of  some  appointment  or 
election.' 

"  The  case  of  State  v.  Carroll,  38  Conn.  449;  9  Am.  Kep.  409,  seems  to 
be  a  leading  case  upon  the  subject.  There,  Butler,  C.  J.,  subjects  the 
authorities,  both  English  and  American,  to  an  elaborate  review,  and 
shows  that  the  idea  that  there  must  be  some  color  of  right,  derived  from 
some  election  or  appointment,  in  order  to  constitute  one  a  de  facto  officer, 
is  without  foundation,  and  is  based  upon  what  he  characterizes  as  *  a 
brief,  inaccurate,  and  deceptive  report '  of  the  case  of  Rex  v.  Lisle,  2 
Strange,  1090,  as  is  shown  by  a  fuller  and  more  accurate  report  of  the 
same  case  in  Andrews,  163.  On  the  contrary,  he  adopts  the  definition 
of  a  de  facto  officer  given  by  Lord  Ellenborough,  in  Rex  v.  Bedford  Level, 
6  East,  356,  generalized  from  a  previous  definition  given  by  Lord  Holt, 
in  Parker  v.  Kett,  1  Ld.  Raym.  658,  as  follows:  'An  officer  de /acto  is 
one  who  has  the  reputation  of  being  the  officer  he  assumes  to  be,  and 
yet  is  not  a  good  officer  in  point  of  law ;'  which  definition,  he  says,  '  has 
never  been  questioned  since,  in  England,  and  is  now  the  rule  there.' " 
Cromer  v.  Boinest,  27  S.  Car.  436 ;  3  S.  E.  Rep.  849. 


] 


DE  JURE  AND  DE  FACTO  JUDGES.  381 

upon  the  acts  of  one  assuming  to  be  a  judge  is  not  bound 
to  show  that  he  acted  under  color  of  title  to  the  office^ 

He  has  the  right  to  assume  that  one  acting  in  such  a 
capacity  is  acting  lawfully,  and  is  what  he  appears  to  be, 
and  what  the  public  generally  regard  him  to  be,  and  that, 
if  he  so  acts,  and  his  acts  are  acquiesced  in  by  the  public,, 
litigants  will  be  bound  thereby.^ 

It  will  be  found  that  a  distinction  is  recognized,  in  some 
of  the  cases,  in  respect  to  the  necessity  of  showing  color  of 
title,  between  a  case  where  the  party  assuming  the  right  to 
act  is  concerned,  and  where  the  question  arises  between 
third  parties  afiected  by  his  acts.  It  being  held  that  in 
the  former  case  color  of  right  must  be  shown,  while  in  the 
latter  it  is  unnecessary.' 

In  some  of  the  definitions  given  in  the  notes  below,  the 
element  of  reputation  is  included  as  necessary  to  consti- 
tute the  party  assuming  to  act  as  a  de  facto  officer  where 
color  of  title  does  not  appear.  In  these  cases  the  repu- 
tation acquired  by  the  actual  performance  of  the  duties 
of  the  office  acquiesced  in  by  the  public,  takes  the  place 
of  the  color  of  title  required  in  other  cases.* 

One  acting  under  appointment  of  one  having  a  colorable 
right  to  make  the  appointment  is  a  de  facto  officer.'^  Not 
only  so,  but  an  appointment  to  an  officer  by  one  who  has 
no  authority  whatever  to  make  the  appointment  is  held 
to  give  color  of  title,  and  to  constitute  the  person  acting 
under   it   an   officer   de  facto.^     So    where  one  is  elected 

1  Cromer  v.  Boinest,  27  S.  Car.  436;  3  8.  E.  Rep.  849. 

'  Petersilea  v.  Stone,  119  Mass.  465;  20  Am.  Rep.  335  ;  State  v.  Carroll, 
38  Conn.  449;  9  Am.  Rep.  409;  Ex  parte  Strang,  21  Ohio  St.  610,  617; 
Ilamlin  v.  Kassafer,  15  Or.  456;  15  Pac.  Rep.  778. 

^  Petersilea  v.  Stone,  119  Mass.  465;  20  Am.  Rep.  335;  Conover  v.  Dev- 
lin, 15  How.  Pr.  470,  477. 

*  Conover  v.  Devlin,  15  How.  Pr.  470.  477  ;  Brown  v.  Lent,  37  Me.  428; 
Ex  parte  Strang,  21  Ohio  St.  610,  617  ;  Hamlin  v.  Kassafer,  15  Ore.  456; 
15  Pac.  Rep.  778. 

5  Ex  parte  Strang,  21  Ohio  St.  610. 

6  State  V.  Bloom,  17  Wis.  521 ;  Laver  v.  McGlachlin,  28  Wis.  364  State 
V.  Lewis,  107  N.  Car.  967 ;  12  S.  E.  Rep.  457 


382  JUDGES. 

judge   before   the    law    authorizing   such    election   takes 
eft'ect,  and  enters  upon  the  duties  of  the  office/ 

The  mere  exercise  of  the  duties  of  the  office,  without 
color  of  right,  or  acquiescence  therein  by  the  public,  can 
not  render  one  an  officer  de  facto.  He  is  a  mere  usurper 
and  his  acts  are  void.  And  if  one  does  not  assume  or 
claim  to  act  as  judge,  but  in  some  other  capacity  not  en- 
titling him  to  perform  judicial  functions,  he  is  not  a  judge 
de  facto?  But  the  authority  is  given  in  some  of  the  states 
to  appoint  an  attorney  to  act,  temporarily,  and  perform 
the  duties  of  judge.  These  statutes,  and  the  powers  of 
such  special  judges  will  be  considered  in  another  section.^ 

The  attorney  so  appointed  can  not  be  regarded  as  a  judge 
de  facto.  He  is  not  acting  under  a  claim  to  hold  and  ex- 
ercise the  duties  of  the  office  of  judge  or  to  have  other 
powers  or  authority  than  those  actually  vested  in  him  by 
appointment.  He  is  therefore  a  de  jure  and  not  a  de  facto 
officer.  And  under  the  statutes  mentioned,  he  is  in  legal 
effect  the  judge  of  the  court  in  fact,  so  far  as  his  ap- 
pointment extends,  and  such  appointment  vests  him  with 
the  powers  of  a  judge. 

But  it  is  held  that  an  attorney  irregularly  appointed 
judge  'pro  tern.,  where  such  appointment  is  authorized  by 
statute,  is  a  judge  de  facto.*' 

There  can  be  no  judge  de  jure  or  de  facto  if  there  is  no 
court  or  office  of  judge.^  Therefore  the  acts  of  one  assum- 
ing to  act  as  the  judge  of  a  pretended  court  having  no 
existence,  are  void,  and  may  be  attacked  collaterally.^ 

'  In  re  Boyle,  9  Wis.  264. 

^  Ante,  sec.  28;  Van  Slyke  v.  Trempealeau  F.  M.  F.  Ins.  Co.,  39  Wis. 
390;  20  Am.  Rep.  50;  Houghland  v.  Creed,  81  111.  506. 

'  Post,  sec.  61. 

*  Post,  sec.  61 ;  Hunter  v.  Furgeson,  13  Kan.  462,  474  ;  State  v.  Murdock, 
86  Ind.  124. 

5  Ante,  sec.  28  ;  People  v.  Toal,  85  Cal.  333,  338 ;  24  Pac.  Rep.  603  ;  Peo- 
ple V.  White,  24  Wend.  (N.  Y.)  520,  539;  Walcott  v.  Wells,  24  Pac.  Rep. 
367,370;  Norton  v.  County  of  Shelby,  118  U.  S.  400;  6  Sup.  Ct.  Rep. 
1121,  1125;  Carleton  v.  People,  10  Mich.  259;  Hildreth  v.  Mclntere,  1  J. 
J.  Marsh.  (Ky.)  206 

^  Ante,  sec.  28;  People  v.  Toal,  85  Cal.  333,  338;  24  Pac.  Rep.  603; 
Norton  v.  County  of  Shelby,  118  U.  S.  400;  6  Sup.  Ct  Rep.  1121. 


I 

i 


DE    JURE    AND    DE    FACTO    JUDGES.  383 

It  is  otherwise  where  one  is  acting  as  judge  of  an  ex- 
isting court  and  claiming  to  be  such  judge  under  a  color- 
able title  to  the  office,  or  other  circumstances  constituting 
him  judge  de  facto.  His  acts  are  not  void,  or  even  void- 
able, on  collateral  attack.  His  acts  are  as  valid  and  binding 
upon  litigants  as  the  acts  of  a  de  jure  judge.^  And  the. 
only  remedy  is  a  direct  action  against  him  to  oust  him 
him  from  the  office  or  to  contest  his  right  to  hold  it.^  But 
the  question  whether  he  is  a  de  facto  judge  or  a  mere  in- 
truder may  be  determined  collaterally.^ 

Usually  the  action  to  remove  him  must  be  by  quo  loar- 
ranto  in  the  name  of  the  state.  But  in  some  of  the  states 
a  statutory  proceeding,  in  the  nature  of  quo  warranto,  is 
provided  for  as  a  means  of  contesting  the  title  to  an  office. 
So  it  may,  in  some  of  the  states,  be  accomplished  by  a 
contest  of  his  right  to  the  office  by  one  claiming  to  be 
the  de  jure  judge,  or  by  an  elector  of  the  county  or  district. 

However  he  may  be  removed  from  office,  his  powers 
cease  from  that  time.  But  until  such  removal  his  acts  are 
valid  and  binding. 

It  has  been  held  that  where  the  term  of  the  office  of 
judge  has  terminated  by  the  constitution,  on  a  certain  day, 
but  both  the  judge  and  his  successor,  in  good  faith  and 
not  without  reason,  construed  the  constitution  as  extend- 
ing the  term  one    day  longer,  the  outgoing  judge  was, 

'  Ex  parte  Strang,  21  Ohio  St.  610,  617  ;  Keith  v.  State,  49  Ark.  439 ;  5 
S.  W.  Rep.  880;  .Planning  r.  Weeks,  139  U.  S.  504;  11  Sup.  Ct.  Rep.  624  ; 
Ball  V.  United  States,  140  U.  8. 118;  11  Sup.  Ct.  Rep.  761 ;  State  r.  Bloom, 
17  Wis.  521. 

^  People  V.  Sassovich,  29  Cal.  480 ;  Hull  v.  Superior  Court,  63  Cal.  174; 
Keith  V.  State,  49  Ark.  439 ;  5  S.  W.  Rep.  880;  People  v.  Gobies,  67  Mich. 
475 ;  35  N.  W.  Rep.  91 ;  Ex  parte  Johnson,  15  Neb.  512  ;  19  N.  W.  Rep. 
594;  People  v.  Bangs,  24  111.  184. 

^  "  While  the  question  of  strict  title  to  an  office  can  be  inquired  into 
and  determined  only  by  a  direct  proceeding,  and  while  courts  will  not, 
in  a  collateral  proceeding,  make  such  investigation,  they  may  and  will 
make  such  inquiry  as  will  establish  the  line  between  the  mere  intruder 
into  an  office  and  one  holding  it  under  some  color  of  title,  some  sem- 
blance of  right  between  him  without  any  authority  whatever."  United 
States  V.  Alexander,  46  Fed.  Rep.  728. 


384  JUDGES. 

during  said  day,  which  was  actually  beyond  his  term,  a 
judge  de  facto} 

There  are  other  cases  holding  that  the  acts  of  a  judge, 
after  his  term  of  office  has  expired,  are  valid  as  the  acts  of 
a  de  facto  officer.^  And  that  where  his  successor  has  taken 
the  oath  of  office  and  become  judge  de  jure,  the  outgoing 
judge,  not  having  knowledge  of  the  fact,  and  his  suc- 
cessor not  having  taken  actual  possession  of  his  office,  his 
acts  are  those  of  a  de  facto  judge.^  But  not  where  the 
successor  has  assumed  and  is  performing  the  duties  of  the 
office,  with  the  knowledge  of  the  outgoing  judge,  or  with 
the  general  knowledge  of  the  public* 

Where  one  who  has  been  regularly  appointed  or  elected 
to  an  office  fails  to  comply  with  some  subsequent  condi- 
tion necessary  to  qualify  him  therefor,  as  for  example,  the 
giving  of  a  bond,  the  office  is  not  vacated  by  a  failure  to 
comply  with  such  condition,  nor  is  he  a  de  facto  officer 
merely.  He  is  a  rightful  officer  holding  by  a  defeasible 
title,  and  his  acts  are  valid  until  his  right  to  the  office  is 
forfeited  by  a  direct  action  by  the  state.^  But  this  depends 
upon  the  language  of  the  statute,  which  may  render  the 
office  vacant,  by  the  mere  failure  to  perform  the"  condi- 
tion, without  action.^ 

An  appointment  under  an  unconstitutional  statute,  pur- 
porting to  authorize  an  appointment  to  an  existing  office, 
before  such  statute  is  judicially  declared  to  be  unconstitu- 
tional, gives  color  of  title  to  the  office/  But,  as  we  have 
seen,  this  is  not  so  where  the  statute  attempting  to  create 
the  office  is  unconstitutional.^ 

'  Merced  Bank  v.  Rosenthal,  31  Pac.  Rep.  849. 

2  Comer  v.  Boinest,  27  S.  Car.  436 ;  3  S.  E.  Rep.  849  ;  Carli  v.  Rhener, 
27  Minn.  292;  7  N.  W.  Rep.  139;  United  States  v.  Alexander,  46  Fed. 
Rep.  728. 

3  Carli  V.  Rhener,  27  Minn.  292;  7  N.  W.  Rep.  139. 
*  United  States  v.  Alexander,  46  Fed.  Rep.  728. 

5  Foot  V.  Stiles,  57  N.  Y.  399,  403.  But  see  State  v.  Carroll,  38  Conn. 
449;  9  Am.  Rep.  449. 

6  People  V.  Taylor,  57  Cal.  620. 

'  Ex  parte  Strang,  21  Ohio  St.  610,  617 ;  Walcott  v.  Wells,  24  Pac.  Rep. 
367. 
^  "  But  it  is  contended  that  if  the  act  creating  the  board  was  void,  and 


i 


DE    JURE    AND    DE    FACTO    JUDGES.  385 

There  may  be,  at  the  same  time,  a  de  jure  and  a  de  facto 
judge  of  the  same  court. ^  But  there  can  not  be  either  two 
de  jure  or  two  (/e /ado  judges  at  the  same  time.^     Nor  can 

the  commissioners  were  not  officers  de  jure,  they  were,  nevertheless, 
officers  de  facto,  and  that  the  acts  of  the  board  as  a  de  facto  court  are 
binding  upon  the  county.  This  contention  is  met  by  the  fact  that  ther-e 
can  be  no  officer,  either  de^'ure  or  de /ado,  if  there  be  no  office  to  fill. 
As  the  act  attempting  to  create  the  office  of  commissioner  never  became 
a  law,  the  office  never  came  into  existence.  Some  persons  pretended 
that  they  held  the  office,  but  the  law  never  recognized  their  pretensions, 
nor  did  the  supreme  court  of  the  state.  Whenever  such  pretensions 
were  considered  in  that  court,  they  were  declared  to  be  without  any 
legal  foundation,  and  the  commissioners  were  held  to  be  usurpers.  The 
doctrine  which  gives  validity  to  acts  of  officers  de /ado,  whatever  defects 
there  may  be  in  the  legality  of  their  appointment  or  election,  is  founded 
upon  considerations  of  policy  and  necessity,  for  the  protection  of  the 
public  and  individuals  whose  interests  may  be  aflfected  thereby.  Offices 
are  created  for  the  benefit  of  the  public,  and  private  parties  are  not  per- 
mitted to  inquire  into  the  title  of  persons  clothed  with  the  evidence  of 
such  offices,  and  in  apparent  possession  of  their  powers  and  functions. 
For  the  good  order  and  peace  of  society,  their  authority  is  to  be  re- 
spected and  obeyed  until,  in  some  regular  mode  prescribed  by  law, 
their  title  is  investigated  and  determined.  It  is  manifest  that  endless 
confusion  would  result  if,  in  every  proceeding  before  such  officers,  their 
title  could  be  called  in  question.  But  the  idea  of  an  officer  implies  the 
existence  of  an  office  which  he  holds.  It  would  be  a  misapplication  of 
terms  to  cal!  one  an  '  officer '  who  holds  no  office,  and  a  public  office  can 
exist  only  by  force  of  law.  This  seems  to  us  so  obvious  that  we  should 
hardly  feel  called  upon  to  consider  any  ad^•erse  opinion  on  the  subject 
but  for  the  earnest  contention  of  plaintiff's  counsel  that  such  existence 
is  not  essential,  and  that  it  is  sufficient  if  the  office  be  provided  for  by 
any  legislative  enactment,  however  invalid.  Their  position  is  that  a 
legislative  act,  though  unconstitutional,  may  in  terms  create  an  office, 
and  nothing  further  than  its  apparent  existence  is  necessary  to  give 
validity  to  the  acts  of  its  assumed  incumbent.  That  position,  although 
not  stated  in  this  broad  form,  amounts  to  nothing  else.  It  is  difficult 
to  meet  it  by  any  argument  beyond  this  statement:  An  unconstitu- 
tional act  is  not  a  law;  it  confers  no  rights;  it  imposes  no  duties;  it 
affords  no  protection  ;  it  creates  no  office ;  it  is,  in  legal  contemplation, 
as  inoperative  as  though  it  had  never  been  passed.  .  .  .  Numerous 
cases  are  cited  in  which  expressions  are  used  which,  read  apart  from  the 
facts  of  the  cases,  seemingly  give  support  to  the  position  of  counsel. 
But,  when  read  in  connection  with  the  facts,  they  will  be  seen  to  apply 

1  Carli  V.  Rhener,  27  Minn.  292 ;  7  N.  W.  Rep.  139. 
'  United  States  v.  Alexander,  46  Fed.  Rep.  728. 
25 


386  JUDGES. 

there  be  both  a  de  facto  and  a  dejure  judge  actually  in  pos- 
session or  exercising  the  duties  of  the  office  at  the  same 
time.^ 

The  rule  that  upholds  the  acts  of  a  a'e/ac^o  judge,  so  far 
as  they  affect  third  parties  and  the  public,  is  not  confined 
to  his  judgments  or  other  acts,  as  a  court,  but  extends  to 
other  duties  performed  by  him  in  the  exercise  of  the  powers 
of  the  office.'^ 

61.  Special  judges. — Usually  questions  as  to  the  powers 
and  jurisdiction  of  special  judges  arise  in  cases  where  a 
judge  is  called  to  perform  the  duties  and  exercise  the 
functions  and  jurisdiction  of  a  judge  of  another  district 
or  circuit.  These  questions  have,  to  a  certain  extent,  been 
anticipated  in  previous  sections  bearing  upon  changes  of 
venue  and  the  powers  of  judges  to  act  out  of  their  district, 
at  chambers,  and  in  vacation.^     But  there  are  questions 

only  to  the  invalidity,  irregularity,  or  unconstitutionality  of  the  mode 
by  which  the  party  was  appointed  or  elected  to  a  legally  existing  office. 
None  of  them  sanctions  the  doctrine  that  there  can  be  a  de  facto  office 
under  a  constitutional  government,  and  that  the  acts  of  the  incumbents 
are  entitled  to  consideration  as  valid  acts  of  a  de  facto  officer.  Where  an 
office  exists  under  the  law,  it  matters  not  how  the  appointment  of  the 
incumbent  is  made,  so  far  as  the  validity  of  his  acts  are  concerned.  It 
is  enough  that  he  is  clothed  with  the  insignia  of  the  office,  and  exer- 
cises its  powers  and  functions.  As  said  by  Mr.  Justice  Manning,  of 
the  Supreme  Court  of  Michigan,  in  Carleton  v.  People,  10  Mich.  259: 
'  Where  there  is  no  office,  there  can  be  no  officer  de  facto,  for  the  reason 
that  there  can  be  none  dejure.  The  county  office  existed  by  virtue  of 
the  constitution  the  moment  the  new  county  was  organized.  No  act  of 
legislation  was  necessary  for  that  purpose.  And  all  that  is  required 
when  there  is  an  office  to  make  an  officer  de  facto,  is  that  the  individual 
claiming  the  office  is  in  possession  of  it,  performing  its  duties,  and  claim- 
ing to  be  such  officer  under  color  of  an  election  or  appointment,  as  the 
case  may  be.  It  is  not  necessary  that  his  election  or  appointment  be 
valid,  for  that  would  make  him  an  o&cer  de  jtire.  The  official  acts  of 
such  persons  are  recognized  as  valid  on  grounds  of  public  policy,  and 
for  the  protection  of  those  having  official  business  to  transact.'  "  Norton 
V.  County  of  Shelby,  118  U.  S.  400;  6  Sup.  Ct.  Rep.  1121. 

1  Carlir.  Rhener,  27  Minn.  292;  7  N.  W.  Rep.  139. 

2  Thus  it  is  held  that  the  appointment  of  a  clerk  of  the  court  by  de 
facto  judges,  where  the  power  could  have  been  exercised  by  judges  de 
jure  of  the  court,  was  valid.     State  v.  Ailing,  12  Ohio,  16. 

3  Ante,  sees.  46,  57,  58,  59. 


SPECIAL  JUDGES.  387 

not  touched  by  the  sections  referred  to  that  call  for  some 
consideration  in  this  connection. 

Besides  the  judges  who  are  called  to  act  outside  of  their 
territorial  jurisdiction,  and  who  become,  for  the  time  be- 
ing, special,  as  distinguished  from  resident  or  regular 
judges,  provision  is  made,  by  statute,  in  many  of  the  states^ 
for  the  election  or  appointment  of  a  member  of  the  bar  to 
perform  the  duties  of  judge  in  a  particular  case,  or  cases,  or 
for  a  temporary  period.  The  authority  to  elect  or  appoint 
an  attorney  to  perform  the  duties  of  a  judge,  and  his 
powers  when  appointed,  depend  wholly  upon  statutory 
provisions  which  differ  in  the  different  states.^ 

Unless  some  authority  therefor  is  given  by  the  constitu- 
tion or  by  statute,  judicial  powers  can  not  be  conferred 
upon  and  legally  exercised  by  an  attorney,  or  any  one  else 
not  a  judicial  officer,  even  by  consent  and  agreement  of 
the  parties  concerned.^  But  it  has  been  held  that  where 
an  attorney  was  called  to  preside,  by  agreement  of  the 
parties,  during  a  part  of  the  trial  of  a  cause,  and  made  no 
rulings  or  decision  aff'ecting  the  rights  of  the  party  con- 
testing the  validity  of  the  proceedings,  a  mere  irregularity 
was  shown,  and  the  proceedings  were  not  void.^ 

In  some  of  the  states  statutes  authorizing  the  perform- 
ance of  judicial  duties  by  attorneys  selected  for  the  pur- 
pose are  held  to  be  unconstitutional  on  the  ground  that  by. 
the  constitution  all  judicial  powers  are  vested  in  courts, 
and  such  courts  must  be  composed  of  judges,*  This  must 
depend,  of  course,  upon   the  provisions  of  the  constitu- 

'  "A  special  judge  is  a  member  of  the  bar  ajipointed  or  chosen  to  pre- 
side in  the  place  of  the  regular  judge,  owing  to  the  latter's  absence,  dis- 
qualification, or  other  cause ;  or  he  is  a  judge  of  another  court,  called, 
in  for  such  reasons,  and  is  then  more  generally  styled,  perhaps,  substi- 
tute judge."     12  Am.  &  Eng.  Enc.  of  Law,  24. 

'  Ante,  sees.  54,  60;  Hoagland  r.  Creed,  81  111.  506 ;  Van  Slyke  r.  Trem- 
pealeau Co.  F.  M.  F.  Ins.  Co.,  .39  Wis.  390;  20  Am.  Rep.  50;  Cobb  >: 
People,  84  111.  511  ;  McClure  v.  State,  77  Ind.  287;  Haverly  Invincible 
Min.  Co.  V.  Howcutt,  6  Colo.  574. 

^  Fuson  ?!.  Commonwealth,  12  S.  W.  Rep.  263. 

*  Van  Slyke  v.  Trempealeau  Co.  F.  M.  F.  Ins.  Co.,  39  Wis.  390 ;  20  Am. 
Rep.  50. 


888  JUDGES. 

tions  of  the  different  states,  but  a  different  conclusion  has 
been  reached  in  other  states  under  similar  constitutional 
provisions.^  And  such  statutes  have  generally  been  up- 
held and  are  now  in  force  in  most  of  the  states. 

In  some  of  the  states  express  authority  to  provide  for 
the  appointment  of  special  judges  is  given  by  constitu- 
tion.^ Statutes  of  this  kind  provide  for  appointments  to 
be  made  in  different  ways  in  the  different  states  : 

By  the  regular  judge,^  by  stipulation  of  the  parties,*  by 
the  members  of  the  bar,^  by  the  clerk  of  the  court,^  by 
county  commissioners,^  by  the  governor,^  by  officers  of  the 
county.^ 

A  judge  from  another  district  is  authorized  to  be  called 
in  different  ways: 

By  the  governor,'"  by  the  regular  judge,"  by  the  clerk  of 
the  court. '^ 

1  State  V.  Williams,  14  W.  Va.  851 ;  Brown  v.  Buzan,  24  Ind.  194;  Per- 
kins V.  Hayward,  124  Ind.  445;  24  N.  E.  Rep.  1033;  Cargar  v.  Fee,  119 
Ind.  536;  21  N.  E.  Rep.  1080. 

^  Thus,  in  Indiana  it  is  provided :  "  The  general  assembly  may  provide 
by  law,  that  the  judge  of  one  circuit  may  hold  the  courts  of  another 
circuit,  in  cases  of  necessity  or  convenience ;  mid  in  case  of  temporarrj  in- 
ability of  any  judge,  from  sickness  or  other  cause,  to  hold  the  courts  in  his  cir- 
cuit, provision  maybe  made  by  law  for  holding  such  courts.'"  Const.  Ind., 
Art.  7,  sec.  10;  Shugart  v.  Miles,  125  Ind.  445;  25  N.  E.  Rep.  551. 

3  Walter  v.  Walter,  117  Ind.  247  ;  20  N.  E.  Rep.  148. 

*  Hunter  v.  Ferguson,  13  Kan.  462;  State  v.  Sachs,  29  Pac.  Rep.  446  ; 
Smith  r.  State,  24  Tex.  290 ;  6  S.  W.  Rep.  40. 

^  Royal  Ins.  Co.  v.  Rufer,  89  Ky.  518 ;  12  S.  W.  Rep.  1043 ;  State  r. 
Williams,  14  W.  Va.  851  ;  State  v.  Sanders,  17  S.  E.  Rep.  223;  Smith  r. 
State,  24  Tex.  290;  6  S.  W.  Rep.  40. 

"  Beck  V.  Henderson,  76  Ga.  360. 

'  Nebraska  M'f'g  Co.  v.  Maxon,  23  Neb.  224 ;  36  N.  W.  Rep.  492. 

8  Smith  V.  State,  24  Tex.  290 ;  6  S.  W.  Rep.  40. 

»  Feigel  v.  State,  85  Ind.  580. 

"  Pico  V.  Williams,  11  Pac.  Rep.  600 ;  State  v.  Lewis,  107  N.  Car.  967  ;  12 
S.  E.  Rep.  457. 

'^  Eureka,  etc..  Canal  Company  v.  Superior  Court,  66  Cal.  311 ;  5  Pac. 
Rep.  490;  King  Co.  v.  Hill,  1  Wash.  63 ;  23  Pac.  Rep.  926 ;  People  v.  Gal- 
lagher, 75  Mich.  512;  42  N.  W.  Rep.  1063. 

12  Gallup  V.  Smith,  59  Conn.  354  ;  22  Atl.  Rep.  334. 

In  this  case  the  statute  provided  that  the  judge  should  be  cited  by  the 
clerk,  but  the  court  held  it  to  be  directory,  and  that  a  citation  by  the 
judge  of  the  court  was  sufficient. 


SPECIAL    JUDGES.  389 

"Where  it  is  provided  that  the  judge  of  another  district 
may  act  in  case  of  the  disqualification  of  the  regular  judge, 
but  no  provision  is  made  as  to  who  shall  designate  the  par- 
ticular judge  and  request  him  to  act,  it  is  held  that  the 
power  rests  in  the  disqualified  judge.^ 

The  power  to  appoint  in  case  of  the  temporary  absence 
or  inability  of  the  regular  judge  confers  no  authority  to 
make  such  appointment,  even  temporarily,  where  the  ofiice 
of  judge  is  vacant.^  Such  appointments  are  usually  au- 
thorized to  be  made  upon  conditions  or  contingencies 
specified  in  the  statute  or  in  the  constitution.  And  in 
order  to  render  the  appointment  valid,  such  conditions,  or 
causes  for  the  appointment,  must  exist.* 

But  the  mere  mode  of  selection  or  the  person  by  whom 
the  selection  shall  be  made  is  sometimes  held  to  be  merely 
directory,  and,  the  proper  result  having  been  reached,  an 
immaterial  variation  will  not  vitiate  the  appointment.* 

It  is  not  necessary,  in  case  of  a  collateral  attack,  that 
the  existence  of  the  causes  shall  appear  on  the  face  of  the 
record.^ 

If  the  record  is  silent  on  the  subject,  and  such  an  ap- 
pointment could  have  been  made,  legally,  under  any  cir- 
cumstances, the  authority  for  making  the  appointment, 
and  that  the  grounds  therefor  existed,  will  be  presumed.® 

1  Granite  Mount.  Min.  Co.  r.  Durfee,  11  Mont.  222;  27  Pac.  Rep.  919. 

^  Case  V.  State,  5  Ind.  1. 

^  Ante,  sec.  57 ;  Ellis  v.  Karl,  7  Neb.  381 ;  Royal  Ins.  Co.  r.  Rufer,  89 
Ky.  518;  12  S.  AV.  Rep.  1043;  Tyler  v.  Board  of  Supervisors,  15  N.  Y. 
Sup'l,  366. 

"  "Where  the  constitution  prescribes  a  mode  of  selection  of  a  substi- 
tute or  special  judge,  and  indicates  the  causes  which  will  justify  such 
selection,  it  excludes  other  modes  of  selection,  and  other  causes."  12 
Am.  &  Eng.  Enc.  of  Law,  25,  citing  State  v.  Phillips,  27  La.  An.  663; 
State  V.  Frank,  27  La.  An.  689;  State  v.  Judge,  9  La.  An.  62;  Hayes  r. 
Hayes,  8  La.  An.  468. 

*  Gallup  V.  Smith,  59  Conn.  354 ;  22  Atl.  Rep.  334. 

^  Ante,  sec.  51,  p.  350  ;  sec.  57,  p.  371. 

«  Ante,  sees.  51,  p.  350;  27,  p.  371;  People  v.  Mellon,  40  Cal.  648,  655; 

Green  v.  Walker,  99  Mo.  68;  12  S.  W.  Rep.  353;  Hunter  r.  Ferguson,  13 

.  Kan.  462;  Kenney  v.  Phillipy,  91  Ind.  511 ;  State  r.  Sachs,  29  Pac.  Rep. 

446;  Dissenting  opinion  of  Lewis,  J.,  Gresham  r.  Ewell,  84  Va.  784;  6 

S.  E.  Rep.  700. 


390  JUDGES. 

And  where  the  record  recites  the  fact  that  the  regular 
judge  was  disqualified,  and  the  appointment  of  the  special 
judge,  it  will  be  presumed  that  the  appointment  was 
regular/ 

It  is  held,  however,  under  the  statutes  of  some  of  the 
states,  that  the  facts  must  appear  on  the  record,  or  the 
proceedings  of  the  special  judge  are  void,  because  the 
statute  expressly  requires  the  causes  to  be  entered  of 
record.^  And  it  is  held  that  the  cause  of  disqualification 
of  the  regular  judge  must  appear  in  the  record  in  case  of 
a  transfer  to  another  judge,  and  that  it  is  not  sufiicient 
that  it  appear  generally  that  such  judge  was  "  disqualified 
to  hear  and  determine  the  cause."  ^ 

If  the  right  to  appoint  a  special  judge  depends  upon 
the  disqualification  of  the  regular  judge,  the  latter  can  not 
recuse  himself  and  appoiijt  a  si>ecial  j udge  where  a  party 
to  the  action  could  not  legally  do  so.* 

Usually  it  is  held  that  the  party  objecting  to  the  sub- 
stitution of  a  special  for  the  regular  judge,  whether  the 
party  substituted  is  an  attorney  or  another  judge,  must 
make  his  objection  at  the  time,  or  at  least  before  submit- 
ting to  a  trial  before  such  special  judge,  or  the  right  to 
contest  the  substitution  will  be  waived,  unless  the  want 
of  authority  of  the  special  judge  appears  afiirmatively  in 
the  record.^  In  other  words,  it  can  not  be  shown  dehors 
the  record,  by  a  party  to  the  judgment,  that  a  special  judge 
who  has,  without  objection,  proceeded  to  judgment  in  a 
cause,  was  not  legally  appointed.'' 

1  Hess  V.  Dean,  66  Tex.  663;  2  S.  W.  Eep.  727. 
But  see,  on  this  point,  Smith  v.  State,  24  Tex.  290;  6  S.  W.  Eep.  40, 

-where  it  was  held  that  under  the  statute  in  Texas,  the  record  upon  ap- 
peal must  show  the  reasons  for  the  selection  of  a  special  judge  and  the 
manner  in  which  he  became  such  judge. 

2  Gresham  v.  Ewell,  84  Va.  784 ;  6  S.  E.  Rep.  700 ;  Smith  v.  State,  24 
Tex.  290;  6  S.  W.  Rep.  40. 

^  Roberts  v.  State,  27  Fla.  244 ;  9  Sou.  Rep.  246.  ^  | 

*  State  V.  Judge,  41  La.  An.  319  ;  6  Sou.  Rep.  22.  ^  % 

s  Liliie  V.  Trentman,  130  Ind.  16 ;  29  N.  E.  Rep.  405 ;  State  v.  Sachs,  29 

Pac.  Rep.  446;  Stately.  Gilmore,  19  S.  W.  Rep.  218;  Littleton  v.  Smith, 

119  Ind.  230 ;  21  N.  E.  Rep.  886. 
6  Littleton  v.  Smith,  119  Ind.  230;  21  N.  E.  Rep.  886;   Harman  v. 

IMoore,  112  Ind.  221  ;  13  N.  E.  Rep.  718;  Adams  v.  Gowan,  89  Ind.  3-58. 


SPECIAL    JUDGES.  391 

And  if  the  objection  goes  to  the  form  of  the  appoint- 
ment, as  for  example  that  it  is  not  in  writing,  a  new  ap- 
pointment may  be  made  and  the  objection  thus  obviated.^ 
And  any  irregularities  in  the  appointment  may  be  waived 
in  the  same  way.  So  the  acts  of  a  special  judge,  as  well 
lis  another,  may  be  upheld  as  the  acts  of  a  de  facto  officer - 
wliere  the  circumstances  are  such  as  to  warrant  it." 

The  same  presumptions  of  jurisdiction  attach  to  the 
records  of  proceedings  before  special  judges  as  before  the 
regular  judge.^  And  where  the  record  shows  a  proper  ap- 
pointment and  trial,  it  can  not  be  disputed,  collaterally, 
but  is  conclusive  upon  parties  before  the  court.* 

Where  no  attempt  is  made  to  comply  with  the  statute 
authorizing  an  appointment,  but  an  attorney,  with  con- 
sent of  parties,  is  permitted  to  act  as  judge  in  the  per- 
formance of  any  judicial  act,  the  act  is  wholly  without  au- 
thority and  void.^ 

Where  the  objection  is  seasonably  made  that  the  ap- 
pointment is  not  made  in  writing,  when  it  is  required  to 
be  so  made,  or  that  it  is  not  in  compliance  with  the  statute 
for  any  other  reason,  it  will  be  held,  on  appeal,  that  an  ap- 
pointment not  in  writing  or  otherwise  insufficient  confers 
no  authority.^ 

The  acts  of  the  special  judge,  so  appointed,  are  not  void, 
but  voidable  by  entering  an  objection  at  the  proper  time." 

>  Taylor  v.  Bosworth,  1  Ind.  Appellate,  54 ;  27  N.  E.  Re]).  115. 

^  Ante,  sec.  60;  Hunter  v.  Ferguson,  13  Kan.  462;  State  v.  Lewis,  107 
N.  Car.  967;  12  S.  E.  Rep.  457;  Greenwood  v.  State,  116  Ind.  485;  19  N. 
E.  Rep.  333;  State  v.  Murdock,  86  Ind.  124. 

2  Green  v.  Walker,  99  Mo.  68;  12  S.  W.  Rep.  353;  State  v.  Ganible,  IS 
S.  AV.  Rep.  nil. 

*  Reid  V.  Mitchell,  93  Iiid.  469.  But  see  the  dissenting  opinion  of 
Elliott,  J.,  in  the  case  just  cited,  p.  474. 

^  McClure  v.  State,  77  Ind.  287 ;  Herbster  v.  State,  80  Ind.  484. 

s  Greenwood  v.  State,  116  Ind.  485;  19  N.  E.  Rep.  333;  Kennedy  r. 
State,  53  Ind.  542. 

'  "  Objection  was  duly  made  to  the  judge  of  the  court,  and  he  called  a 
member  of  the  bar  to  preside  as  judge,  but  made  no  written  appoint- 
ment, as  the  law  requires.  The  appellant  at  once  objected  to  tiie  com- 
petency of  the  attorney  called  by  the  judge,  and  thus  presented  the 
question  at  the  earliest  opportunity.     As,  there  was  no  written  appoint- 


392  JUDGES. 

And  where  the  appointee  is  required  by  the  statute  to 
take  the  oath  of  office,  and  no  such  oath  is  taken,  an  ob- 
jection to  his  acting,  on  that  ground,  will  be  sustained  on 
appeal  if  made  in  the  court  below  at  the  proper  time,  and 
in  such  case,  the  facts  necessary  to  show  his  due  appoint- 
ment and  qualification  must  appear  in  the  record.^ 

"Where  authority  is  given  the  governor,  for  certain 
causes,  to  direct  a  judge  to  hold  court  in  another  district 
it  can  not  be  shown,  in  support  of  a  writ  of  prohibition  to 
prevent  such  judge  from  acting,  where  the  same  does  not 
appear  of  record,  that  such  causes  did  not  exist.^ 

If  the  special  judge  fails  to  appear  within  the  time  for 
which  he  is  appointed,  or  fails  to  complete  the  trial  within 
the  term  for  which  he  was  authorized  to  act,  the  cause  re- 
turns, without  further  action,  to  the  regular  judge,  and  a 
new  appointment  must  be  made.^ 

The  extent  of  the  powers  of  an  attorney  appointed  as 
special  judge  is  usually  provided  for  and  limited  by  the 
statute  by  which  the  appointment  is  authorized,  or  by  the 

ment,  and  as  the  objection  was  promptly  interposed,  the  appeal  must 
be  sustained.  Schlungger  v.  State,  113  Ind.  295;  15  N.  E,  Rep.  269; 
Herbster  v.  State,  80  Ind.  486 ;  Evans  v.  State,  56  Ind.  459 ;  Kennedy  v. 
State,  53  Ind.  542. 

In  sustaining  this  appeal,  we  do  not  mean  to  hold  that  an  oral  ap- 
pointment is  absolutely  void.  On  the  contrary,  we  do  hold,  as  we  did 
in  Schlungger  v.  State,  supra,  that  it  is  not  absolutely  -void,  and  that  an 
objection  to  the  method  of  appointment  may  be  waived,  and  will  be 
deemed  waived,  unless  seasonably  made.  The  person  appointed  is  at 
least  judge  de  facto,  and,  in  order  to  makie  availing  an  objection  to  the 
competency  of  a  judge  de  facto,  it  must  be  promptly  interposed,  for  the 
acts  of  such  a  judge  may  be  valid,  and  so  they  will  be  regarded  where 
there  has  been  a  waiver  of  objections.  Smurr  v.  State,  105  Ind.  125  ;  4 
N.  E.  Eep.  445,  and  authorities  cited.  The  term  'void'  is  improperly 
used  in  some  of  the  cases,  for  the  acts  of  a  de  facto  judge  are  at  most  only 
voidable.  We  can  not  approve  of  some  of  the  expressions  found  in  the 
cases  upon  this  question ;  for  we  are  convinced  that,  upon  principle  and 
authority,  the  acts  of  a  de  facto  judge  will  stand,  unless  promptly  and 
properly  assailed."    Greenwood  v.  State,  116  Ind.  485 ;  19  N.  E.  Rep.  333. 

1  Kennedy  v.  State,  53  Ind.  542. 

2  Pico  V.  Williams,  11  Pac.  Rep.  600. 

3  Singleton  v.  Pidgeon,  21  Ind.  118;  Glenn  v.  State,  46  Ind.  368; 
Greenup  v.  Crooks,  50  Ind.  41U. 


SPECIAL    JUDGES.  393 

constitution,  and  such  statute  or  constitutional  provision 
is  the  foundation  of  his  right  to  act,  and  he  can  not  legally 
go  beyond  the  authority  thereby  conferred  upon  him.  But 
by  some  of  the  statutes  he  is  given  the  same  authority, 
during  the  continuance  of  his  appointment,  as  the  judge 
elect.^  And  this  general  authority  has  been  held  to  au-- 
thorize  such  special  judge  to  sign  a  bill  of  exceptions  after 
the  term  of  his  appointment  in  a  case  tried  before  him 
during  such  term,  in  a  state  where  it  is  held  that  the  regu- 
lar judge  can  not  sign  a  bill  of  exceptions  after  his  term 
of  office  has  expired.^ 

Such  power  would  appear  much  more  clearly  to  exist  in 
those  states  in  which  the  judge  elect  is  held  to  have  au- 
thority to  settle  and  sign  a  bill  of  exceptions  after  the  ex- 
piration of  his  term  of  office,  which  is  the  case  in  some  of 
the  states.^ 

Where  a  judge  is  called  from  another  district,  he  is  usually 
given  all  of  the  powers  of  the  resident  judge,  for  the  time 
being,  but  his  authority,  like  that  of  an  attorney  appointed, 
may  be  and  sometimes  is  limited  by  the  constitution  or 
statute.*  And,  if  his  powers  are  limited  by  the  constitu- 
tion, a  statute  attempting  to  confer  greater  or  different 
powers  upon  him  is  invalid.^  But,  where  the  constitution 
authorizes  a  judge  called  from  another  district  to  perform 
certain  duties,  but  does  not  forbid  the  performance  of  other 
duties  by  him,  the  legislature  may,  by  statute,  extend  his 
authority  to  other  acts.^ 

Where  a  special  judge  is  appointed,  or  elected,  to  try  a 
cause,  and  the  same  is  afterward  transferred  to  another 

1  Shugart  v.  Miles,  125  Ind.  445;  25  N.  E.  Rep.  551;  Perkins  v.  Hay- 
ward,  124  Ind.  445;  24  N.  E.  Rep.  1033;  State  v.  Neider,  94  Mo.  79;  6  S. 
W.  Rep.  708;  Powers  v.  State,  23  Tex.  42;  5  S.  W.  Rep.  153. 

2  Shugart  i-  Miles,  125  Ind.  445;  25  N.  E.  Rep.  551 ;  M.  K.  &  T.  Ry.  Co. 
V.  City  of  Fort  Scott,  15  Kan.  435,  475. 

'Fellows  V.  Tait,  14  Wis.  156;  Davis  v.  President,  etc.,  20  Wis.  205; 
M.  K.  &  T.  Ry.  Co.  v.  City  of  Fort  Scott,  15  Kan.  435,  476. 

*  Ante,  sec.  57;  Morriss  r.  Virginia  Ins.  Co.,  85  Va.  588;  8  S.  E.  Rep. 
883. 

^  Ante,  .sec.  57. 

*  Ante,  sec.  57,  p.  371;  Holden  v.  Haserodt,  51  N.  W.  Rep.  340. 


1 


394  JUDGES. 


county  for  trial,  lie  may  follow   the  case  into  the  other 
county  and  try  it  there.' 

A  judge  appointed  pro  tempore,  by  the  regular  judge, 
can  not  appoint  another  to  act  as  judge  in  his  stead.^ 

Court  can  not  legally  be  held  by  a  special  judge  where 
there  is  but  one  regular  judge  of  the  district  and  he  is 
holding  a  regular  term  of  court  at  the  time.  This  has 
been  held  where  the  regular  and  special  judges  were  hold- 
ing courts  in  different  counties  in  the  district.* 

A  special  judge  elected  to  try  a  cause,  and  whose  au- 
thority terminates  with  the  termination  of  the  action,  has  ■ 
authority  to  re-try  the  same,  if  reversed  on  appeal  and  a 
new  trial  ordered.*  And,  where  such  special  judge  is  se- 
lected because  of  the  disqualification  of  the  regular  judge, 
his  authority  continues  until  the  action  is  terminated,  al- 

'  State  V.  Higgerson,  19  S.  W.  Rep.  624. 

2  Cargar  v.  Fee,  119  Ind.  536;  21  N.  E.  Rep.  1080. 

^  "  The  commencement  of  a  term  is  a  legislative  command  to  the 
elected  judge  to  be  present  and  discharge  the  judicial  duties  devolving 
upon  liim  in  that  county.  It  operates  as  a  suspension  of  his  duties  in 
all  other  counties  in  his  district,  and  suspends,  or  closes,  the  terms  in 
those  counties.  The  legislature  provides  for  terms,  in  order  to  secure 
his  personal  attention  to  the  litigation  in  each  county.  It  pi-escribes  the 
commencement  of  each  term,  leaving  the  time  of  closing  to  the  discre- 
tion of  the  judge  acting  upon  the  necessities  of  business.  It  does  not 
leave  the  commencement  to  his  discretion,  because  it  intends  that  each 
county  shall  have  the  benefit  of  his  presence  and  labors  at  a  certain  and 
known  time.  The  people  of  the  entire  district  elect  the  judge.  Each 
county  is  entitled  to  the  benefit  of  his  learning  and  experience.  And 
the  legislature  by  terms  names  the  time  of  his  attendance.  Impliedly, 
thereby  commanding  him  to  attend  in  one  county,  it  equally  commands 
him  to  leave  all  the  others.  The  case  of  Grable  v.  The  State,  2  G. 
Greene,  559,  is  strongly  in  point.  Under  similar  provisions,  the  su- 
preme court  of  Iowa  there  held  that  the  term  in  one  county  was  closed 
on  the  day  the  term  was  by  law  to  commence  in  another.  It  says : 
'  From  the  constitution  of  our  judicial  system,  it  is  apparent  that  the 
court  can  not  be  held  in  two  counties  in  the  same  district  on  the  same 
day,  and  by  one  and  the  same  judge.'  So  we  say  here,  there  is  but  one 
district  court  and  one  district  judge  in  a  district.  The  officer  is  not  to 
be  duplicated,  and,  when  a  term  commences  in  one  county,  the  court 
every-where  else  in  the  district  is  closed,  or  suspended.  A  judge  pro 
tern,  is  only  a  substitute,  and  never  a  duplicate.  In  re  Millington,  24 
Kan.  214,  224. 

*  State  V.  Sneed,  91  Mo.  552;  4  S.  W.  Rep.  411. 


JUDGES    DISQUALIFIED    BY    INTEREST,    ETC.  395 

though,  in  the  meantime,  a  regnhir  judge,  not  disqualified, 
takes  the  bench.  The  cause  may,  in  such  case,  be  heard 
by  either  the  regular  or  special  judge.^  And  his  authority 
includes  not  only  the  trial  of  the  particular  action,  but 
any  litigation  between  the  same  parties  growing  out  of 
that  action;  for  example,  an  action  to  vacate  the  judg- 
ment therein  and  enjoin  the  levy  of  execution  issued 
thereon.^ 

A  special  judge  who  refuses  to  act  on  the  ground  that 
the  regular  judge  is  not  disqualified,  when  in  fact  he  is 
disqualified,  may  be  compelled  by  mandamus  to  proceed.* 

62.  Judges  disqualified  by  interest  or  otherwise. — A 
judge  who  is  in  all  other  respects  competent  may  be  wholly 
without  authority  to  act  in  a  particular  cause  or  proceeding 
because  of  some  disqualification  aftecting  his  right  to  pre- 
side in  such  cause  or  proceeding.  This  may  arise  from 
some  personal  interest  he  may  have  in  the  result  of  the 
action  as  a  party,  or  as  attorney  or  counsel  for  a  party,  or 
from  other  causes.'*  It  is  the  policy  of  the  law  to  with- 
hold from  a  judge  all  power  or  jurisdiction  to  act  in  any 
matter  in  which  he  has  a  personal  interest,  irrespective  of 
the  wishes  or  consent  of  the  parties  interested.^  But  the 
kind  or  degree  of  interest  that  will  disqualify  can  not  be 

'  Noffzieger  v.  Reed,  98  Mo.  87;  11  S.  W.  Rep.  315. 
^  Harris  v.  Musgrave,  72  Tex.  18;  9  S.  W.  Rep.  90. 
'  Schultze  V.  McLeary,  73  Tex.  92;  11  S.  W.  Rep.  924. 

*  Freeman  on  Judg.,  sec.  144. 

*  Duncan  v.  McCall,  139  U.  S.  449;  11  Sup.  Ct.  Rep.  573;  Templeton  v. 
Giddings,  12  S.  W.  Rep.  851 ;  Oakley  v.  Aspinwall,  3  N.  Y.  547  ;  Heilbron 
V.  Campbell,  23  Pac.  Rep.  122;  Cooley's  Const.  Lim.,  *pp.  410-413. 

"The  provision  of  article  29  of  our  declaration  of  rights,  that  'it  is 
the  right  of  every  citizen  to  be  tried  by  judges  as  free,  impartial,  and  in- 
dependent as  the  lot  of  humanity  will  admit,'  rests  upon  a  principle  so 
obviously  just,  and  so  necessary  for  the  protection  of  the  citizen  against 
injustice,  that  no  argument  is  necessary  to  sustain  it,  but  it  must  be  ac- 
cepted as  an  elementary  truth.  The  impartiality  which  it  requires  in- 
capacitates one  to  act  as  a  judge  in  a  matter  in  which  he  has  any  pecun- 
iary interest,  or  in  which  a  near  relative  or  connection  is  one  of  the 
parties.  It  applies  to  civil  as  well  as  criminal  cases;  and  not  only  to 
judges  of  courts  of  law  and  equity  and  probate,  but  to  special  tribunals, 
and  to  persons  authorized  on  a  special  occasion  to  decide  between  par- 


396  JUDGES. 

accurately  defined.  It  must,  however,  be  some  direct  in- 
terest that  is  personal  to  the  judge  and  not  such  a  general 
or  public  interest  as  affects  all  persons  in  the  district  or 
community  contingently  only  and  equally  with  him.^ 

It  is  provided  in  the  statutes  of  some  of  the  states  that 
the  general  interest  one  has  as  a  tax-payer  of  a  city  or 
county  will  not  disqualify  a  judge  in  an  action  by  or  against 
such  city  or  county.^  And  this  is  the  accepted  doctrine 
of  some  of  the  cases  independently  of  such  statutory  pro- 
visions.^ It  must  be  a  property,  or  pecuniary  interest.* 
So  it  is  held  that  the  bias  or  prejudice  of  the  judge,  or  a 
desire  on  his  part  that  one  or  the  other  of  the  parties  shall 
succeed,  is  not  sufficient  to  disqualify  him.*    And  it  must 

ties  in  respect  to  their  rights.  It  existed  under  the  common  law  from 
the  earhest  times."     Hall  v.  Thayer,  105  Mass.  219;  7  Am.  Rep.  513. 

'  Sauls  V.  Freemen  Co.  Com'r,  24  Fla.  209 ;  4  Sou.  Rep.  525 ;  Commis- 
sioners, etc.,  V.  Lytle,  3  Ohio,  290;  Commonwealth  v.  Ryan,  5  Mass.  89; 
inhabitants  of  Northampton  v.  Smith,  52  Mass.  (11  Met.)  390;  Peck  v. 
Freeholders  of  Essex,  20  N.  J.  Law,  457. 

2  Smith  V.  Faxon,  31  N.  E.  Rep.  687. 

3  State  v.  Severance,  4  Atl.  Rep.  560;  State  v.  Craig,  80  Me.  85;  13  Atl. 
Rep.  129 ;  Peck  v.  Freeholders  of  Essex,  20  N.  J.  Law,  457. 

But  see  Peck  v.  Freeholders  of  Essex,  21  N.  J.  Law,  656,  in  which  the 
same  case  just  cited  was  reversed  by  the  Court  of  Errors  and  Appeals 
and  the  doctrine  declared  that  such  an  interest  rendered  the  judge,  in- 
competent. 

*  Sauls  V.  Freeman,  24  Fla.  209;  4  Sou.  Rep.  525;  Ex  parte  Harris,  7 
Sou.  Rep.  1 ;  Taylor  v.  Williams,  26  Tex.  583 ;  Inhabitants  of  Northamp- 
ton V.  Smith,  52  Mass.  (11  Met.)  390. 

"  The  interest  meant  by  the  statute  is  property  interest.  In  Inhabit- 
ants of  Northampton  v.  Smith,  11  Mete.  395,  it  is  said  that  the  interest 
must  be  a  pecuniary  or  proprietary  interest,— a  relation  by  which,  as 
debtor  or  creditor,  as  heir  or  legatee,  or  otherwise,  the  judge  will  gain  or 
lose  something  by  the  result  of  the  proceedings,— in  contradistinction  to 
an  interest  of  feeling  or  sympathy  or  bias  that  would  disqualify  a  juror. 
See,  also,  Sjoberg  v.  Nordin,  26  Minn.  501,  5  N.  W.  Rep.  677.  If  the 
nature  of  the  suit  is  such  that  no  individual  property  interest  of  the 
judge  or  juror  is  involved  in  it,  there  can  be  no  disqualification,  as  to 
either,  on  the  ground  of  interest.  Such  is  clearly  the  nature  of  a  man- 
damus proceeding.  It  was  not  brought  to  enforce  any  individual  prop- 
erty rights  of  any  one,  but  to  compel  the  commissioners  to  perform  a 
public  duty."     Sauls  v.  Freeman,  24  Fla.  209;  4  Sou.  Rep.  525,  528. 

="  Post,  sec.  63 ;  Sjorberg  v.  Nordin,  26  Minn.  501 ;  5  N.  W.  Rep.  677 ; 
Ex  parte  Harris,  7  Sou.  Rep.  1 ;  Taylor  v.  Williams,  26  Tex.  583. 


JUDGES    DISQUALIFIED    BY    INTEREST,    ETC.  397 

be  such  an  interest  as  will  be  affected,  directly,  by  the  de- 
termination of  the  action,  and  not  incidentally  or  in  an 
uncertain  or  remote,  degree.^  But  it  must  not  be  under- 
stood from.,  this  that  some  interest  of  the  judge  must  be 
actually  involved  in  the  issues  and  will  be  directly  affected 
by  the  result.  If  his  rights  regarding  the  subject-matter, 
of  the  pending  action  will  be  affected,  or  he  may  be  placed 
iu  a  more  or  less  favorable  situation,  in  litigation  that  may 
follow  respecting  the  same  subject-matter,  he  is  disquali- 
fied.2 

1  Webster  v.  Com'rs  Wash.  Co.,  26  Minn.  220 ;  2  N.  AV.  Rep.  697 ;  North 
Bloomfield  G.  M.  Co.  v.  Keyser,  .58  Cal.  315 ;  Inhabitants  of  Northampton 
-y.  Smith,  52  Mass.  (11  Met.)  390. 

^  "  So,  putting  the  matter  in  the  most  favorable  light  for  the  respond- 
ent, we  have  a  case  in  which  three  parties  are  adversely  claiming  to  be 
the  owners  of  a  certain  tract  of  land,  one  of  whom  is  a  judge  of  the 
court,  and  the  other  two  adverse  litigants  before  him,  asking  him,  by  bis 
judgment,  to  determine  which  of  them  is  the  owner  of  the  land  which 
he  claims  to  own.  Not  only  so,  but  he  is  asked  to  appoint  a  receiver  to 
take  possession  of  land  which  he  claims  to  own,  and  account  to  him  for 
its  management.  He  is  called  upon  by  the  application  for  a  receiver, 
or  may  be,  to  determine  what  lands  shall  go  into  the  hands  of  such  re- 
ceiver. As  he  claims  a  part  of  the  land,  and  asserts  that  it  is  not  within 
the  larger  tract  in  dispute,  the  temptation  to  exclude  it  in  making  his 
order  will  at  once  arise ;  and,  if  his  land  is  to  go  into  the  hands  of  a 
receiver,  it  must  be  of  some  interest  to  him  who  shall  become  such 
receiver,  and  take  charge  of  and  manage  the  land.  It  seems  to  us  that 
neither  argument  nor  authority  is  necessary  to  show  that  a  judge  should 
be  prohibited  from  sitting  in  a  cau.se  under  such  circumstances;  but  we 
cite  Code  Civil  Pro.,  sec.  170;  Mining  Co.  v.  Keyser,  58  Cal.  315;  Stock- 
well  V.  Board,  22  Mich.  341 ;  Hall  v.  Thayer,  105  Mass.  219;  Cottle's  Ap- 
peal, 5  Pick.  482 ;  Sigourney  v.  Sibley,  21  Pick.  101 ;  Coffin  v.  Cottle,  9 
Pick.  287;  Gay  v.  Minot,  3  Cush.  352;  Moses  v.  Julian,  45  N.  H.  52;  Oak- 
ley V.  Aspinwall,  3  N.  Y.  547. 

"It  is  contended  that  our  statute  only  disqualifies  a  judge  where  he 
has  a  direct  interest  in  the  result  of  the  suit,  and  that,  as  in  this  case  a 
judgment  for  or  against  either  of  the  parties,  determining  the  contro- 
versy between  them,  could  not  bind  the  judge,  or  affect  his  title  to  the 
land  claimed  by  him,  he  was  not  disqualified.  But  we  can  not  give  the 
statute  this  narrow  construction.  It  should  be  the  duty  and  desire  of 
every  judge  to  avoid  the  very  appearance  of  bias,  prejudice,  or  partial- 
ity; and  to  this  end  he  should  decline  to  sit,  or,  if  he  does  not,  should 
be  prohibited  from  sitting,  in  any  case  in  which  his  interest  in  the  sub- 
ject-matter of  the  action  is  such  as  would  naturally  influence  him  either 
one  way  or  the  other.     We  have  shown  how  a  judge  might,  and  proba- 


398  JUDGES. 

A  mere  interest  in  the  question  involved,  there  being 
no  interest  in  the  subject-matter  of  the  action  does  not 


i 


bly  would,  be  influenced  to  act  in  the  appointment  of  a  receiver.  In 
the  decision  of  the  action  on  its  merits,  the  temptation  to  decide  in 
favor  of  one  party  or  the  other  might  be  equally  strong.  It  might  be- 
come very  important  to  him  to  have  the  land  go  to  one  of  the  claimants 
rather  than  the  other.  One  might  be  friendly  to  him,  and  his  claim,  ;J 
and  the  other  not.  With  one  a  compromise  might  be  easy,  and  with 
the  other  difficult.  One  might  be  much  more  inclined,  and  more  able, 
pecuniarily  or  otherwise,  than  the  other,  to  litigate  his  claim  against 
him.  And,  aside  from  what  might  influence  the  judge  under  such  cir- 
cumstances, it  appears  to  us  to  be  unseemly  for  a  judge  to  sit  in  an  action 
involving  the  title,  as  between  the  litigants,  to  a  subject-matter  of  which 
he  claims  to  be  the  sole  owner,  and  must  in  the  end  litigate  as  between 
himself  and  the  litigant  who  succeeds  to  the  property  by  his  judgment." 
Heilbron  v.  Campbell,  23  Pac.  Rep.  123 ;  24  Pac.  Rep.  930. 

"  It  is  an  ancient  maxim,  and  one  founded  in  the  most  obvious  prin- 
ciples of  natural  right,  that  no  man  ought  to  be  a  judge  in  his  own 
cause.  That  principle  finds  expression  in  our  statute  in  these  words:  jt 
'  No  justice,  judge,  or  justice  of  the  peace  shall  sit  or  act  in  any  action. 
or  proceeding:  1.  To  which  he  is  a  party,  or  in  which  he  is  inter- 
ested.' .  .  .  (Sec.  170,  Code  Civ.  Proc.)  This  provision  shonld  not 
receive  a  technical  or  strict  construction,  but  rather  one  that  is  broad 
and  liberal.  '  The  court  ought  not  to  be  astute  to  discover,'  said  the  Su- 
preme Court  of  Michigan,  in  Stockwell  v.  The  Township  Board  of  AVhite 
Lake,  22  Mich.  350,  '  refined  and  subtle  distinctions  to  save  a  case  from 
the  operation  of  the  maxim,  when  the  principle  it  embodies  bespeaks 
the  propriety  of  its'application.  The  immediate  rights  of  litigants  are 
not  the  only  objects  of  the  rule.  A  sound  public  policy,  which  is  in- 
terested in  preserving  every  tribunal  appointed  by  law  from  discredit, 
imperiously  demands  its  observance.'  Undoubtedly  the  prohibition 
does  not  extend  to  cases  where  the  interest  is  simply  in  some  question 
or  questions  of  law  involved  in  the  controversy,  or  when  it  is  indirect 
and  remote ;  and  if  the  interest  of  Judge  Keyser  in  the  suit  pending 
before  him  extends  no  further  than  that,  it  is  clear  that  he  is  not 
disqualified  to  determine  the  cause.  But  we  can  not  so  regard  his 
interest  upon  the  facts  as  presented.  The  city  of  Marysville  says  in  its 
complaint,  that  the  defendants  are  causing  the  property  of  the  city  and 
that  of  its  inhabitants  great  and  irreparable  damage  by  sending  down 
the  Yuba  River  vast  quantities  of  tailings  from  their  mines,  thus  pol- 
luting the  waters  of  the  river,  filling  up  its  channel,  overflowing  the  adja- 
cent lands,  and  depositing  the  debris  on  the  lands  of  the  city,  and  other- 
wise injuring  it  and  its  people.  The  defendants  say,  in  their  petition, 
that  the  respondent  owns  land  adjoining  those  of  the  city,  and  similarly 
situated ;  that  in  precisely  the  same  manner  and  to  the  same  extent 
that  the  tailings  sent  down  the  Yuba  River  by  them  injure  the  lands  of 
the  city  of  Marysville  and  its  inhabitants,  they  injure  the  lands  of  the 


i 


JUDGES    DISQUALIFIED    BY    INTEREST,    ETC.  399 

disqualify  the  judge. ^  The  possibility  of  the  judge  being 
afiected  may  be  so  remote  as  not  to  disqualify.^  But  where 
he  has  a  direct  and  certain  interest  in  the  result,  no  mat- 
ter how  small  the  interest  may  be,  he  is  disqualified.^  And 
where  the  interest  consists  of  a  claim  against  an  estate,  the 
fact  that  the  judge  has  resolved  not  to  prosecute  his  claim^ 
does  not  affect  the  question.* 

Usually  it  is  provided  by  statute,  and  where  it  is  not 
so  provided  it  is  held  by  the  courts,  that  the  same  interest 
that  would  disqualify  a  juror  to  sit  in  a  cause  will  disqual- 
ify a  judge  to  preside.^  But  this  is  true  only  as  to  his  pe- 
cuniary interest  in  the  result  of  the  suit,  consanguinity  or 
affinity  to  a  party  to  the  suit  and  the  like,  A  juror  may 
be  disqualified  on  account  of  his  feeling  of  bias  or  preju- 

respondent.  The  city  of  Marysville  says  the  acts  of  the  defendants  in 
the  particulars  mentioned  are  unlawful,  and  it  asks  the  judgment  of  the 
court  enjoining  them  from  sending,  or  permitting  to  be  sent,  down  the 
Yuba  River  the  tailings  or  debris  from  the  mines  or  from  otherwise 
polluting  the  waters  of  the  river. 

"  If  the  relief  prayed  for  is  awarded,  the  same  judgment  that  stops 
the  flow  of  tailing  or  debris  on  to  the  lands  of  the  city  of  Marysville, 
stops  its  flow  onto  the  lands  of  the  respondent.  The  very  judgment  that 
will  protect  ]\Iarysvile  will  protect  him.  His  interest,  therefore,  is  not 
merely  in  the  questions  of  law  involved  in  the  controversy,  nor  is  it  un- 
certain or  remote ;  but  it  is  a  direct  and  immediate  interest  in  the  result 
of  the  action.  We  are,  therefore,  of  the  opinion  that  respondent  is  dis- 
qualified to  sit  in  judgment  in  the  cause."  North  Bloomfield  G.  M.  Co. 
V.  Keyser,  58  Cal.  315,  322. 

1  McFadden  v.  Preston,  54  Tex.  443. 

*  Ex  parte  Alabama  State  Bar  Association,  8  Sou.  Rep.  768;  Common- 
wealth V.  Ryan,  5  Mass.  89. 

^  "  It  is  very  certain  that^  by  the  principles  of  natural  justice,  of  the 
common  law,  and  of  our  constitution,  no  man  can  lawfully  sit  as  judge 
in  a  cause  in  which  he  may  have  a  pecuniary  interest.  Nor  does  it 
make  any  diflfereuce,  that  the  interest  appears  to  be  trifling;  for  the 
minds  of  men  are  so  differently  affected  Ijy  the  same  degrees  of  interest 
that  it  has  been  found  impossible  to  draw  a  satisfactory  line.  Any  in- 
terest, therefore,  however  small,  has  been  held  sufficient  to  render  a  judge 
incompetent."     Pearce  v.  Ahvood,  13  Mass.  324,  340. 

*  Sigourney  v.  Sibley,  38  Mass.  101. 

^  Sjorberg  v.  Nordin,  26  Minn.  501 ;  5  N.  W.  Rep.  677 ;  Sauls  v.  Free- 
man, 24  Fla.  209;  4  Sou.  Rep.  525;  Horton  v.  Howard,  79  Mich.  642;  44 
N.  W.  Rep.  1112. 


400  JUDGES. 

dice  or*>f  hostility  toward  one  of  the  parties  that  would 
not  disqualify  a  judge. ^ 

The  circumstances  that  have  been  held  to  disqualify 
a  judge  are  of  various  kinds:  1.  Personal  pecuniary  in- 
terest in  the  result  of  the  action.^  It  is  not  necessary  that 
the  judge  be  a  party  to  the  action  or  that  his  interests 
would  be  determined  by  the  judgment  rendered.  If  the 
adjudication  might  be  such  as  to  afi'ect  his  rights  or  inter- 
ests in  another  action  if  brought,  it  is  enough.^  So  if  the 
judgment,  although  not  for  or  against  him  would,  if  en- 
forced, necessarily  protect  his  property.*  2.  Having  been 
of  counsel  for  one  interested  in  the  result.'  It  has  been 
held  that  the  fact  of  the  judge  having  been  attorney  for 
one  of  the  parties  in  another  action  involving  one  of  the 
issues  presented  in  the  action  before  him  does  not  dis- 
qualify him.^  But  this  is  a  very  narrow  construction  of 
the  rule  and  statutes  and  is  open  to  very  serious  question. 
It  is  a  decision  that  it  will  be  better  to  overlook.'^  3.  Con- 
sanguinity or  affinity  to  a  party  or  one  having  an  interest.^ 
Consanguinity  or  affinity  was  not  a  disqualification  at 
common  law.^ 

Relationship  to  a  stockholder  of  a  corporation  does 
not  disqualify  in  an  action  in  which  the  corporation  is  a 

^  Post,  sec.  63;  Fleming  v.  State,  11  Ind.  234;  Sauls  v.  Freeman  Co. 
Com'rs,  2-1,  Fla.  209 ;  4  Sou.  Rep.  525 ;  Sjorberg  v.  Nordin,  26  Minn.  501 ; 
5  N.  W.  Rep.  677;  Ex  parte  Harris,  7  Sou.  Rep.  1. 

"^  INIoses  V.  Julian,  45  N.  H.  52;  84  Am.  Dec.  114;  Estate  of  White,  37 
Cal.  190. 

■'' Templeton  v.  Giddings.  12  S.  W.  Rep.  851;  Succession  of  Jan.,  10 
Sou.  Rep.  6. 

*  North  Bloomfield-G.  M.  Co.  v.  Keyser,  58  Cal.  315. 

5  Moses  V.  Julian,  45  N.  H.  52 ;  84  Am.  Dec.  114 ;  Johnson  v.  State,  29 
Tex.  526;  16  S.  W.  Rep.  418;  Estate  of  White,  37  Cal.  190. 

«  Amann  v.  Lowell,  66  Cal.  306. 

'  For  a  similar  construction  of  a  constitutional  provision  see  Taylor  v. 
Williams,  26  Tex.  583. 

8Horton  v.  Howard,  79  Mich.  642;  44  N.  W.  Rep.  1112;  Moses  v. 
Julian,  45  N.  H.  52;  84  Am.  Dec.  114;  Oakley  v.  Aspinwall,  3  N.  Y.547; 
Matter  of  Dodge,  etc.,  Mf'g  Co.,  77  N.  Y.  101 ;  People  v.  De  LaGuerra, 
24  Cal.  73. 

9  Matter  of  Dodge,  etc.  Mf'g  Co.,  77  N.  Y.  101. 

"  Affinity  is  the  tie  arising  from  marriage,  between  the  husband  and 


I 


JUDGES  DISQUALIFIED  BY  INTEREST,  ETC.  401 

party  .^  But  the  cases  so  holding  are  usually  based  upon 
statutes  providing  that  relationship  to  a  -party  shall  dis- 
qualify a  judge,  it  being  held  that  a  stockholder  not  being 
a  party  the  case  is  not  within  the  terms  of  the  statute. 
If  the  judge  is  himself  a  stockholder  he  is  disqualified.^ 
4.  Bias  and  prejudice  for  or  against  one  of  the  parties.^- 
This,  however,  is  not  a  disqualification  in  some  of  the 
states,  and  usually  it  is  made  ground  for  a  change  of  venue, 
and  is  waived  if  the  objection  is  not  made  in  advance.* 
But  under  such  statutes  the  judge  becomes  disqualified, 
upon  the  proper  application  for  a  change  of  venue  being 
made,  as  completely  as  in  other  cases  of  disqualification,^ 
And  some  of  the  statutes  provide,  in  terms,  that  the  judge 
shall  be  incompetent  to  sit  in  the  cause  when  the  affidavit 
provided  for  is  made.®  It  is  held  in  some  of  the  cases 
that  the  judge  can  not  be  allowed  to  question  whether  the 
recusation  is  well  founded  or  not,  and  that  this  must  be  left 
to  the  decision  of  the  special  judge  who  may  be  called  to 
determine.^  But  this  is  not  so  in  all  of  the  states  as  has 
been  shown  elsewhere.^  What  efi'ect  the  disqualification 
of  a  judge  will  have  upon  a  judgment  rendered  is  not  uni- 
formly determined.  But  certainly  where  a  judge  is  for- 
bidden by  positive  law  to  act  under  certain  disqualifying 

the  blood  relations  of  the  wife,  and  between  the  wife  and  the  blood  re- 
lations of  the  husband,  but  there  is  no  affinity  between  the  kinsman  of 
the  wife  and  those  of  the  husband,  or  vice  versa.  Thus,  say  the  books, 
the  husband's  brother  and  the  wife's  sister  have  no  affinity.  The  same 
must  be  true  of  the  husband's  brother  and  the  wife's  brother.  See  title 
'  Affinity,'  in  the  law  dictionaries  of  Tomlin,  Bouvier,  Abbott  and  Ra- 
palje  &  Lawrence.  There  is  no  affinity  between  the  blood  relatives  of 
the  husband  and  blood  relatives  of  the  wife.  Paddock  r.  Wells,  2  Barb. 
Ch.  331;  Carman  v.  Newell,  1  Denio,  25;  Spear  v.  Robinson,  29  Me.  531; 
Waterhouse  v.  Martin,  Peck  (Tenn.)  373."  Ex  parte  Harris,  7  Sou. 
Rep.  1. 

1  Matter  of  Dodge,  etc.,  Mf'g  Co.,  77  N.  Y.  101,  109;  Searsburgh  Tp. 
Co.  V.  Cutler,  6  Vt.  315. 

^  Cook  Stock  &  Stockholders,  sec.  4a.  ^  Post,  sec.  63. 

*  Ante,  sees.  4(5,  49;  post  sec.  (53 ;  Ex  parte  Harris,  7  Sou.  Rep.  1. 

^  Ante,  sees.  24,  p.  15,  4(5,  p.  337,  47,  51 ;  post,  sec.  63 ;  State  v.  Judge, 
39  La.  An.  994;  3  Sou.  Rep.  91. 

« In  re  Bedard,  17  S.  W.  Rep.  693. 

'  State  V.  Judge,  39  La.  An.  994 ;  3  Sou.  Rep.  91.  «  Ante,  sees.  47,  51. 

26 


402  JUDGES. 

circumstances,  his  acts  done  in  violation  of  such  prohi- 
bition should  be  treated  as  absolutely  void.^ 

And  such  should  be  the  effect  where  the  act  is  not 
expressly  forbidden,  but  is  made  a  ground  for  a  change 
of  judge.  But,  whether  this  is  so  or  not,  is  not  so  well 
settled. 

If  the  question  of  interest  were  one  affecting  the  parties 
alone,  they  might  properly  be  held  to  waive  it  by  consent 
or  a  failure  to  raise  an  objection.  But  it  is  a  matter  in 
which  the  whole  public  is  interested.  The  rule  "that  for- 
bids one  to  sit  as  judge  in  his  own  case  is  one  of  public 
policy  affecting  tbe  due  and  proper  administration  of 
justice,  and  should  render  void  the  proceedings  of  a  judge 
affecting  matters  of  private  concern  to  himself  whether 
objection  is  made  by  the  parties  directly  interested  or  not.^ 

^Horton  v.  Howard,  79  Mich.  642;  44  N.  W.  Rep.  1112;  Moses  v. 
Julian,  45  N.  H.  52;  84  Am.  Dec.  114;  Templeton  v.  Giddings,  12  S.  W. 
Eep.  851 ;  Oakley  v.  Aspinwall,  3  N.  Y.  547 

lu  Horton  v.  Howard,  supra,  it  is  said : 

"The  next  question  is  whether  the  decree  is  void,  or  merely  voidable. 
No  judge  can  sit  in  his  own  cause.  '  Should  he  do  so,  a  decree  rendered 
by  him  in  his  own  favor  would  be  utterly  void.  If  he  can  not  sit,  his 
Beat,  in  a  judicial  sense,  is  vacant,  and  his  acts  are  without  judicial 
sanction.  Tlie  inhibition  of  the  statute  is  the  same  where  he  is  related 
to  a  party  to  a  cause,  and  the  result  is  the  same.  The  authorities  are 
numerous,  and  nearly  uniform,  which  hold  that  a  judgment  or  decree 
rendered  by  a  judge  contrary  to  a  statute  like  ours  is  void,  and  may  be 
attacked  collaterally.  Foot  v.  Morgan,  1  Hill,  654;  Oakley  v.  Aspinwall, 
3  N.  Y.  547 ;  Estate  of  White,  37  Cal.  192  ;  Chambers  r.  Hodges,  23  Tex 
104;  Fecheimer  v.  Washington,  77  Ind.  366:  Hall  r.  Thayer,  105  Mass 
219;  In  re  Ryers,  72  N.  Y.  1;  In  re  Manufacturing  Co.,  77  N.  Y.  101 
Railway  Co.  v.  Howard,  20  Mich.  25;  Stockwell  v.  Board,  22  Mich.  349 
Shannon  v.  Smith,  31  Mich.  452  ;  West  v.  Wheeler,  49  Mich.  505 ;  13  N 
W.  Rep.  836." 

■■^  Cooley  Const.  Lim.,  «pp.  410-413. 

"  It  is  however  urged  at  the  bar,  that  although  the  judge  were  want- 
ing in  authority  to  sit  and  take  part  in  the  decision  of  this  cause,  yet 
that  having  done  so  at  the  solicitation  of  the  respondent's  counsel, 
such  consent  warranted  the  judge  in  acting,  and  is  an  answer  to  this 
motion. 

"Bat  where  no  jurisdiction  exists  by  law  it  can  not  be  conferred  by 
consent,  especially  against  the  prohibitions  of  a  law,  which  was  not  de- 
signed merely  for  the  protection  of  the  party  to  a  suit,  but  for  the  gen- 
eral interests  of  justice.     (Low  v.  Rice,  8  John.  409;  Clayton  v.  Per  Dun, 


I 


JUDGES  DISQUALIFIED  BY  INTEREST,  ETC.  403 

But  it  is  said  that  the  rule  at  common  law  was  otherwise.^ 
So  it  is  held,  in  some  of  the  cases,  that  the  acts  of  a  dis- 
qualified judge  are  not  void  where  he  is  not  forbidden  to 
act  by  positive  law,  and  no  objection  to  his  acting  was 
made  in  advance."     But  in  other  cases  statutes  forbidding 

13  Id.  218;  Edwards  v.  Russell,  21  Wend.  63;  21  Pick.  101.)  It  is  the 
design  of  the  law  to  maintain  the  purity  and  impartiality  of  the  courts, 
and  to  insure  for  their  decisions  the  respect  and  confidence  of  the  com- 
munity. Their  judgments  become  precedents  which  control  the  de- 
termination of  subsequent  cases;  and  it  is  important,  in  that  respect, 
that  their  decisions  should  be  free  from  all  bias.  After  securing  wisdom 
and  impartiality  in  their  judgments,  it  is  of  great  importance  that  the 
courts  should  be  free  from  reproach  or  the  suspicion  of  unfairness.  The 
party  may  be  interested  only  that  his  particular  suit  should  be  justly 
<letermined ;  but  the  state,  the  community  is  concerned  not  only  for 
that,  but  that  the  judiciary  shall  enjoy  an  elevated  rank  in  the  estima- 
tion of  mankind. 

"  The  party  who  desired  it  might  be  permitted  to  take  the  hazard  of  a 
biased  decision,  if  he  alone  were  to  suffer  for  his  folly,  but  the  state  can 
not  endure  the  scandal  and  reproach  which  would  be  visited  upon  its 
judiciary  in  consequence.  Although  the  party  consent,  he  will  invari- 
ably murmur  if  he  do  not  gain  his  cause ;  and  the  very  man  who  in- 
duced the  judge  to  act,  when  he  should  have  forborne,  will  be  the  first 
to  arraign  his  decision  as  biased  and  unjust.  If  we  needed  an  illustra- 
tion of  this,  the  attitude  which  the  counsel  for  the  moving  party  in  this 
case  assumed  toward  the  court,  the  strain  of  argument  which  he  ad- 
dressed to  it,  and  the  impression  which  it  was  calculated  to  make  upon 
an  audience,  are  enough  to  show,  that  whatever  a  party  may  consent 
to  do,  the  state  can  not  afford  to  yield  up  its  judiciary  to  such  attack 
and  criticism  as  will  inevitably  follow  upon  their  decisions  made  in  dis- 
regard of  the  prohibitions  of  the  law  under  consideration."  Oakley  v. 
Aspinwall,  3  N.  Y.  547,  552. 

^  Freeman  on  Judg.,  sec.  145;  But  see  Oakley  v.  Aspinwall,  3  N.  Y. 
547;  Matter  of  Ryers,  72  N.  Y.  1 ;  Frevert  v.  Swift,  19  Nev.  400;  11  Pac. 
Rep.  273 ;  12  Am.  &  Eng.  Enc.  of  Law,  41. 

''  Moses  V.  Julian,  45  N.  H.  52;  84  Am.  Dec.  114. 

"At  common  law,  the  recusation  of  a  judge  does  not  affect  his  juris- 
diction, and  though  the  fact  of  his  interest  in  the  subject-matter  in  con- 
troversy will  be  ground  for  the  reversal  of  his  judgment,  his  action  in 
the  cause  is  regarded  merely  as  an  error  or  irregularity,  and  the  judg- 
ment is  therefore  not  void,  but  voidable  only,  except  in  the  case  of  those 
inferior  tribunals  from  which  no  appeal  or  writ  of  error  lies.  Freeman 
on  Judgments,  sec.  145;  Dimes  v.  Grand  Junction  Canal  Co.,  17  Jur.  73; 
S.  C,  16  Eng.  L.  &  Eq.  63 ;  Hesketh  r.  Braddock,  3  Burr.  1847;  Heydeu- 
feldt  V.  Towns,  27  Ala.  423;  Trawick  v.  Trawick,  67  Id.  271;  McMillan 
V.  Nichols,  62  Ga.  36,  38;  Rhea's  Succession,  31  La.  An.  323;  Gorrill  v. 


404  JUDGES. 

an  interested  judge  to  act  are  held  to  be  declaratory  of 
the  common  law,  and  of  a  universal  principle  which  for- 
bids a  judge  to  sit  in  his  own  cause.'  And  it  is  very  ques- 
tionable whether  a  statute  authorizing  the  trial  of  a  cause 

Whittier,  3  N.  H.  268;  Stearns  v.  Wright,  51  Id.  609,  610;  the  principal 
case;  Ten  Eick  v.  Simpson,  11  Paige,  179;  Gregory  v.  Cleveland  R.  R. 
Co.,  4  Ohio  St.  675 ;  Chambers  v.  Hodges,  23  Tex.  104.  But  see  Fore- 
man V.  Hunter,  59  Iowa,  550,  containing  a  mere  dictum,  contra.  And  it 
is  only  under  express  statutory  inhibition  that  the  judgment  is  void. 
Claunch  v.  Castleberry,  23  Ala.  85;  Heydenfeldt  v.  Towns,  27  Id.  423; 
Fecheimer  v.  Washington,  77  Ind.  366;  Ten  Eick  v.  Simpson,  11  Paige, 
179  ;  Chambers  v.  Hodges,  23  Tex.  104.  In  most  of  the  states,  however, 
statutes  have  been  passed  which  expressly  prohibit  a  judge  from  trying, 
sitting  in,  or  acting  in  certain  specified  cases.  And  this  prohibition  in 
express  terms  goes  to  the  jurisdiction ;  the  judgment  is  coram  nonjudice, 
and,  therefore,  void  wherever  brought  in  question.  Freeman  on  Judg- 
ments, sec.  146;  Claunch  v.  Castleberry,  23  Ala.  85;  Heydenfeldt  v. 
Towns,  27  Id.  423 ;  People  t'.  De  la  Guerra,  24  Cal.  73;  Estate  of  White, 
37  Id.  190;  Fecheimer  v.  Washington,  77  Ind.  366  ;  Buckingham  v.  Davis, 
9  Md.  324;  Cottle,  Appellant,  5  Pick.  483;  Coffin  v.  Cottle,  9  Id.  287; 
Sigourney  v.  Sibley,  21  Id.  101 ;  S.  C,  32  Am.  Dec.  248,  and  note  252 ; 
Gay  V.  Minot,  3  Cush.  352;  Bacon,  Appellant,  7  Gray,  791;  Hall  v. 
Thayer,  105  Mass.  219;  Stearns  v.  Wright,  51  N.  H.  608  ;  Bedell  v.  Bailey, 
58  Id.  62 ;  Wigand  v.  Dejonge,  8  Abb.  N.  C.  260 ;  Schoonmaker  v.  Clear- 
water, 41  Barb.  200;  Foot  v.  Morgan,  1  Hill,  654;  People  v.  Tweed,  50 
How.  Pr.  434;  Darling  r.  Pierce,  15  Hun,  542;  Matter  of  Hancock,  27 
Id.  78 ;  Edwards  v.  Russell,  21  Wend.  63 ;  Oakley  v.  Aspinwall,  3  N.  Y. 
547 ;  Price  v.  Bowers,  8  Baxt.  353 ;  Reams  v.  Kearns,  5  Cold.  217 ;  Gar- 
rett V.  Gaines,  6  Tex.  435 ;  Chambers  v.  Hodges,  23  Id.  104  ;  Newcome  v. 
Light,  58  Id.  141 ;  S.  C,  44  Am.  Rep.  604.  '  It  is  no  answer  to  the  dis- 
qualification arising  from  interest  in  the  proceedings  to  say  that  the  de- 
cision in  the  cause  was  correct.  The  statute  does  not  say  that  the  judge 
is  disqualified  to  decide  erroneously,  but  that  he  shall  not  decide  at  all, 
except  to  arrange  the  calendar  and  the  order  of  business,  or  to  change 
the  venue.'  Per  Rhodes,  J.,  Estate  of  White,  37  Cal.  192;  People  v. 
De  la  Guerra,  24  Id.  77.  And  the  mere  affirmance  on  appeal  of  a  judg- 
ment void  for  this  reason  under  the  statute,  imparts  no  validity  to  it. 
Chambers  r.  Hodges,  23  Tex.  104;  Matter  of  Hancock,  27  Hun,  78." 
Moses  V.  Julian,  84  Am.  Dec.  127,  note. 

1  Oakley  v.  Aspinwall,  3  N.  Y.  547 ;  Matter  of  Ryers,  72  N.  Y.  1. 

"  The  provisions  of  our  revised  statutes  on  this  subject  profess  to  be 
merely  declaratory  of  universal  principles  of  law  which  make  no  dis- 
tinction between  the  case  of  interest  and  that  of  relationship,  both 
operating  equally  to  disqualify  a  judge.  Hence,  the  statute  declares, 
that '  no  judge  of  any  court  can  sit  as  such  in  any  cause  to  which  he  is 
a  party  or  in  whicli  he  is  interested,  or  in  which  he  would  be  disquali- 


1 


JUDGES  DISQUALIFIED  BY  INTEREST,  ETC.  405 

"by  a  judge  having  a  personal  interest  in  the  result  is  not 
void  as  depriving  one  of  his  property  without  due  process 
of  law.^     It  is  said  that  this  may  be  done  where  the  dis- 

fied  from  being  a  juror  by  reason  of  consanguinity  or  affinity  to  either 
of  the  parties.'     (2  R,  S.  275,  sec.  2 ;  Revisers'  Notes,  3  R.  S.  694.) 

"After  so  plain  a  prohibition,  can  any  thing  more  be  necessary  to  pre- 
vent a  judge  from  retaining  his  seat  in  the  cases  specified?  He  is  first 
excluded  by  the  moral  sense  of  all  mankind ;  the  common  law  next  de- 
nies him  the  right  to  sit,  and  then  the  revisers  of  our  law  declared  that 
they  intended  to  embody  this  universal  sentiment  in  the  form  of  a  stat- 
utory prohibition,  and  so  they  placed  this  explicit  provision  before  the 
legislature,  who  adopted  it  without  alteration  and  enacted  it  as  the  law. 
The  exclusion  wrought  by  it  is  complete  as  is  in  the  nature  of  the  case 
possible.  The  judge  is  removed  from  the  cause  and  from  the  bench ;  or 
if  he  will  occupy  the  latter,  it  must  be  only  as  an  idle  spectator,  and  not 
as  a  judge.  He  can  not  sit  as  such.  The  spirit  and  language  of  the  law 
are  against  it.  Having  disqualified  him  from  sitting  as  a  judge,  the 
statute  further  declares  that  he  can  neither  decide  nor  take  part  in  the 
decision  of  the  cause,  as  to  which  he  is  divested  of  the  judicial  function. 
Nor  ought  he  to  wait  to  be  put  in  mind  of  his  disability,  but  should 
himself  suggest  it  and  withdraw,  as  the  judge  with  great  propriety  at- 
tempted to  do  in  the  present  case.  He  can  not  sit,  saj'S  the  statute.  It 
is  a  legal  impossibility,  and  so  the  courts  have  held  it.  (Edwards  v. 
Russell,  21  Wend.  63;  Foot  v.  Morgan,  1  Hill,  654.)  "  Oakley  v.  Aspin- 
wall,  3  N.  Y.  547,  551 ;  Matter  of  Ryers,  72  N.  Y.  1  ;  Hall  v.  Thayer,  105 
Mass.  219;  7  Am.  Rep.  513. 

1  Cooley's  Const.  Lim.,  -pp.  410-413 ;  Hall  v.  Thayer,  105  Mass.  219;  7 
Am.  Dec.  513;  Chambers  v.  Hodges,  23  Tex.  104,  112. 

"  It  is  a  matter  of  some  interest  to  know  whether  the  legislatures  of 
the  American  states  can  set  aside  this  maxim  of  the  common  law,  and 
by  express  enactment  permit  one  to  act  judicially  when  interested  in 
the  controversy.  The  maxim  itself,  it  is  said,  iu  some  cases,  does  not 
apply  where,  from  necessity,  the  judge  must  proceed  in  the  case,  there 
being  no  other  tribunal  authorized  to  act,  but  we  prefer  the  opinion  of 
Chancellor  .Sandford,  of  New  York,  that  in  such  a  case  it  belongs  to  the 
power  which  created  such  a  court  to  provide  another  in  which  this 
judge  may  be  a  party;  and  whether  another  tribunal  is  established  or 
not,  he  at  least  is  not  entrusted  with  authority  to  determine  his  own 
rights,  or  his  own  wrongs.     .     .     . 

"  The  people  of  the  state,  when  framing  their  constitution,  may  pos- 
sibly establish  so  great  an  anomaly,  if  they  see  fit ;  but  if  the  legisla- 
ture is  intrusted  with  apportioning  and  providing  for  the  exercise  of 
the  judicial  power,  we  can  not  understand  it  to  be  authorized,  in  the 
execution  of  this  trust,  to  do  that  which  has  never  been  recognized  as 
being  within  the  province  of  the  judicial  authority.  To  empower  one 
party  to  a  controversy  to  decide  it  for  himself  is  not  within  the  legisla- 
tive authority,  because  it  is  not  the  establishment  of  any  rule  of  action 


406  JUDGES. 

qualification  is  by  reason  of  an  interest  that  is  common  to 
all  tax-payers,  but  that  the  legislature  has  no  such  power 
where  the  interest  is  peculiar  and  direct.^ 

If  the  judge  is  disqualified  by  an  express  prohibitory 
statute  or  constitutional  provision,  his  acts  are  void  in  the 
extreme  sense  and  consent  of  parties  can  not  vest  him 
with  jurisdiction.  There  can  be  no  waiver  of  the  dis- 
qualification under  such  circumstances.^ 

or  decision,  but  is  a  placing  of  the  other  party,  so  far  as  that  controversy 
is  concerned,  out  of  the  protection  of  the  law,  and  submitting  him  to 
the  control  of  one  whose  interest  it  will  be  to  decide  arbitrarily  and  un- 
justly."    Cooley  Const.  Lim.  pp.  411,  412. 

1  State  V.  Crane,  36  N.  J.  Law,  394. 

"  The  maxim  under  consideration  has  always  been  regarded  in  English 
jurisprudence,  as  elementary  and  fundamental  in  judicial  action  (Coke 
Lit.,  sec.  212,  Broom,  109),  and,  I  think,  can  no  more  be  materially  in- 
vaded by  the  legislature,  than  it  could  pass  an  act  that  a  judge  might 
decide  according  to  lot,  or  for  a  party  who  should  give  him  the  most 
money.  The  chief  justice,  in  Schroeder  v.  Ehlers,  says,  'that  a  person 
can  not  be  a  judge  in  his  own  case,  has  ever  been  regarded  as  one  of  the 
fundamental  maxims  of  the  law  of  nature ;'  also,  that  the  injustice  of 
allowing  it,  is  intuitive  in  the  human  mind.  In  my  judgment,  the  leg- 
islature is  impotent  to  break  down  this  great  barrier  to  tyranny  and 
fraud.  The  power  of  the  legislature  has  been  seriously  questioned  even 
in  removing  disabilities  for  a  common  interest,  and  the  fair  implication 
of  the  cases  is,  considering  the  ground  upon  which  it  is  sustained,  the 
remoteness  and  small ness  of  the  interest,  that  it  does  not  reach  beyond 
interests  of  a  general  nature.  (See  cases  referred  to.)  The  maxim  is  in- 
herent in,  and  a  part  of  the  nature  of  judicial  action,  and  although  in 
many  matters  the  legislature  may  provide  for  the  exercise  of  judicial 
functions,  and  designate  the  person  who  shall  exercise  them,  yet  it  can 
not,  in  so  doing,  lose  sight  of  the  essential  character  of  judicial  action, 
and  authorize  or  sanction  a  judgment  through  instrumentalities  con- 
trary to  the  innate  and  universally  recognized  sense  of  natural  justice. 
In  such  a  case,  the  power  conferred  would  not  be  judicial,  it  would  be 
tyrannical."     State  v.  Commissioners,  36  N.  J.  Law,  394,  403. 

^  Moses  V.  Julian,  45  N.  H.  52 ;  84  Am.  Dec.  114, 130  note ;  Freeman  on 
Judg.,  sec.  146;  Oakley  v.  Aspinwall,  3  N.  Y.  547;  State  v.  Sachs,  29 
Pac.  Rep.  446;  Frevert  v.  Swift,  19  Nev.  363;  11  Pac.  Rep.  273;  Chambers 
V.  Hodges,  23  Tex.  104,  112;  Hall  v.  Thayer,  105  Mass.  219;  7  Am. 
Rep.  513. 

"Where  the  statute  expressly  declares  that  the  disqualified  judge 
shall  not  act  in  the  cause,  this  divests  the  judge  of  jurisdiction  in  the 
extreme  sense,  and  his  judgment  is  entirely  incapable  of  being  made 
geod  by  any  omission,  waiver,  or  even  express  consent  of  both  parties: 


I 


JUDGES   DISQUALIFIED    BY   INTEREST,    ETC.  407 

With  respect  to  the  policy  of  allowing  a  disqualified 
judge  to  sit  in  judgment  in  a  case  in  which  he  is  inter- 
ested, the  question  whether  he  is  expressly  forbidden  to 
act  or  not,  should  have  no  weight.  And  the  language  of 
the  courts,  so  warmly  condemning  proceedings  taken  by  a 
judge  against  these  statutory  provisions,  is  just  as  applica- 
ble to  proceedings  had  in  the  absence  of  such  provisions. 
It  is  the  interest  that  the  judge  has  in  the  result  of  the 
suit,  that  disqualifies,  and  not  the  statute.  And  the  action 
of  a  judge,  in    trying  his  own  case,  is  as  much  against 

Oakley  v.  Aspinwall,  3  N.  Y.  547;  Converse  v.  Mc Arthur,  17  Barb.  410; 
Chambers  f.  Clearwater,  1  Keyes,  314;  Matter  of  Hancock,  27  Hun,  82; 
Clayton  v.  Per  Dun,  13  Johns.  218;  Low  v.  Rice,  8  Id.  409;  Schoonmaker 
V.  Clearwater,  41  Barb.  200;  Richardson  i.  Welcome,  6  Cush.  331;  Si- 
gourney  v.  Sibley,  21  Pick.  101;  S.  C,  32  Am.  Dec.  248;  Peninsular  R. 
R.  Co.  V.  Howard,  20  Mich.  25 ;  People  v.  De  la  Guerra,  24  Cal.  73.  In 
regard  to  the  giving  of  jurisdiction  by  consent,  it  is  said  in  Oakley  v.  As- 
pinwall, 3  N.  Y.  547,  552,  553,  per  Hurlbut,  J.:  'The  party  who  desired 
it  might  be  permitted  to  take  the  hazard  of  a  biased  decision,  if  he  alone 
were  to  suffer  for  his  folly ;  but  the  state  can  not  endure  the  scandal  and 
reproach  which  would  be  visited  upon  its  judiciary  in  consequence. 
Although  the  party  consent,  he  will  invariably  murmur  if  he  do  not 
gain  his  cause;  and  the  very  man  who  induced  the  judge  to  act  Avhen 
he  should  have  forborne,  will  be  the  first  to  arraign  his  decision  as 
biased  and  unjust.  If  we  needed  an  illustration  of  this,  the  attitude 
which  counsel  for  the  moving  party  in  this  case  assumed  toward  the 
court,  the  strain  of  argument  he  addressed  to  it,  and  the  impression  it 
was  calculated  to  make  upon  an  audience,  are  enough  to  show  that 
whatever  a  party  may  consent  to  do,  the  state  can  not  afford  to  yield  up 
its  judiciary  to  such  attack  and  criticism  as  will  inevitably  follow  upon 
their  decisions  made  in  disregard  of  the  prohibitions  of  the  statute 
under  consideration.'  '  This  language  shows  in  a  clear  and  forcible  man- 
m-r  the  evils  resulting  from  the  practice  of  permitting  any  judge  to  act, 
under  any  circumstances,  in  a  matter  wherein  his  judgment  is  likely  to 
be  attributed  to  improper  motives;'  Freeman  on  Judgments,  sec.  146. 
'  The  consent  of  parties  could  not  remove  his  incapacity,  or  restore  his 
competency  against  the  prohibitions  of  law,  which  was  designed,  not 
merely  for  the  protection  of  the  party  to  the  suit,  but  for  the  general  in- 
terests of  justice;'  Chambers  v.  Hodges,  23  Tex.  113,  per  Wheeler,  C.  J. 
'  No  restriction  on  this  salutary  rule  should  ever  be  made.  Human 
nature  is  frail.  'Lead  us  not  into  temptation,'  is  a  canon  of  petition 
worthy  of  divine  origin,  and  the  purity  of  the  judicial  ermine  will  be 
preserved  best  by  removing  its  wearers  far  from  all  temptation  ;  Matter 
of  Hancock,  27  Hun,  80,  per  Dykman,  J."  Moses  v.  Julian,  84  Am.  Dec. 
130,  note. 


408  JUDGES, 

public  policy  and  just  as  reprehensible  whether  there  is 
such  a  statute  or  not.  For  these  reasons  the  distinction 
made  in  the  cases  cited  in  the  note  do  not  seem  to  rest 
upon  any  reasonable  or  just  foundation. 

In  some  of  the  states  parties  are  expressly  authorized  by 
statute  to  waive,  by  mutual  consent,  the  objection  that  the 
judge  is  disqualified  on  certain  grounds,'  Under  such  a 
statute  mere  delay  in  objecting  to  a  trial  before  a  judge  so 
disqualified  will  not  waive  the  right  to  make  such  ob- 
jection before  triai,^  But  in  some  cases  it  is  held  that  the 
objection  must  be  made  before  issue  joined.^  Where  the 
court  is  composed  of  several  judges  a  majority  of  whom 
are  disqualified  to  sit  in  a  cause,  the  parties  may  stipulate 
that  the  cause  may  be  submitted  to  and  decided  by  the 
judges  not  disqualified,  and  the  members  of  the  court  not 
competent  to  act  may  sit  for  the  purpose  of  making  a  neces- 
sary quorum  of  the  court,*  But  if  one  who  is  disqualified 
participates  in  the  decision,  the  judgment  can  not  be  up- 
held, although  a  sufiicifent  number  of  competent  judges 
concur  in  the  decision,^  It  is  the  duty  of  a  judge,  who  is 
satisfied  that  he  is  legally  disqualified,  to  decline  to  act 
without  waiting  for  an  objection  from  either  of  the  par- 
ties.^ But  he  can  not  recuse  himself  where  he  is  not  le- 
gally disqualified,  and  thus  deprive  the  parties  of  a  trial 
before  him.^ 

Where  provision  is  made  for  the  transfer  of  a  cause  to 
another  court  where  the  judge  is  disqualified,  such  dis- 
qualification does  not  operate  -per  se  to  transfer  the  same. 
The  judge  has  the  power  to  pass  upon  the  question  of  his 
disqualification,  and  upon  ascertaining  the  fact  must  make 
the  necessary  order  for  such  transfer,^     But  he  can  make 

'  Stone  V.  Marion  Co.,  78  la.  14;  42  N.  W.  Rep.  570;  Chase  v.  Weston, 
75  la.  159;  39  N.  W.  Rep.  246;  12  Am.  &  Eng.  Enc.  of  Law,  50. 
^  Chase  v.  Weston,  75  la.  159;  39  N.  W.  Rep.  246. 
=>  12  Am.  &  Eng.  Enc.  of  Law,  51.  *  Walker  v.  Rogan,  1  Wis.  597. 

*  Moses  V.  Julian,  84  Am.  Dec.  132,  note. 

«  Moses  V.  Julian,  45  N.  H.  52;  84  Am.  Dec.  114. 

'  Ante,  sec.  61 ;  State  v.  Judge,  41  La.  Ann.  319;  6  Sou.  Rep.  22;  Ex 
parte  Harris,  7  Sou.  Rep.  1. 

*  Poole  V.  Mueller  Bros.  Furniture  Co.,  80  Tex.  189;  15  S.  W.  Rep.  1056. 


I 


JUDGES    DISQUALIFIED    BY    INTEREST,    ETC.  409 

no  order  affecting  or  controlling  the  proceedings  in  the 
cause. ^  He  is  not,  by  his  disqualification,  prevented  from 
executing  a  specific  mandate  of  the  supreme  court  to  the 
court  of  which  he  is  judge,  and  about  which  he  has  no 
discretion  or  power  to  decide.^  i^^or  does  it  affect  his 
power  to  perform  purely  ministerial  acts.^  The  fact  that 
a  relative  of  the  judge  is  attorney  for  one  of  the  parties  to 
the  action  does  not,  ordinarily,  disqualify  him.*  But  it  is 
otherwise  where  such  relative  is  to  have,  as  compensation 
for  his  services,  a  part  of  the  property  in  litigation  in  case 
he  is  successful.^  The  fact  that  the  decision  of  a  disquali- 
fied judge  is  correct  does  not  affect  the  question  of  its 
invalidity.^ 

If  a  judge  is  vested  by  the  constitution  with  exclusive 
jurisdiction,  and  his  failure  to  act  will  deprive  the  parties 
of  all  remedy,  he  is  held  to  be  authorized  to  take  such 
steps  as  may  be  absolutely  necessary  to  avoid  a  failure  of 
remedy.''  Whether  such  would  be  the  case  where  ex- 
clusive jurisdiction  is  conferred- by  statute,  and  not  by  the 
constitution,  may  well  be  doubted.  In  some  of  the  cases 
a  distinction  is  made  between  a  substantial  and  direct 
pecuniary  interest  in  the  judge  and  those  in  which  he  "has 
not  so  direct  an  interest  as  that  the  result  must  necessarily 
aftect  him  to  his  personal  or  pecuniary  loss  or  gain,  or 
where  his  personal  or  pecuniary  interest  is  minute."* 

The  rule  of  disqualification  does  not  apply  to  officers 
not  judicial,  although  their  acts  may  call  for  the  exercise 

'  Salm  V.  State,  89  Ala.  56 ;  8  Sou.  Rep.  66. 

^  State  V.  Collins,  5  Wis.  339. 

'  State  r.  Gurney,  17  Neb.  523;  23  N.  W.  Rep.  524. 

*  Patric  V.  Crowe,  25  Pac.  Rep.  985. 

5  Howell  V.  Budd,  91  Cal.  342 ;  27  Pac.  Rep.  747. 
«  Estate  of  White,  37  Cal.  190. 

'  flatter  of  Ryers,  72  N.  Y.  1 ;  Commonwealth  v.  Ryan,  5  Mass.  89 ; 
Pearce  v.  At  wood,  13  Mass.  324,  340. 

*  '•  It  is,  however,  objected  that,  though  this  may  be  so,  where  ex- 
clusive jurisdiction  is  conferred  by  the  constitution,  it  is  not  so  where 
the  power  is  given  by  statute,  general  or  specific.  True,  it  is  s-aid  in 
books  of  high  repute,  that  '  a  legislative  act,  which  should  undertake  to 
make  a  judge  the  arbiter  in  his  own  cause,  would  be  void'  (Cooley  on 
Const.  Lim.,  *175) ;  and  so  has  Lord  Coke  said  (Co.  Lit.,  sec.  212) ;  and 


410  JUDGES. 

of  judgment  and  discretion.'  If  a  judge  persists  in  acting 
where  he  is  disqualified  he  may  be  prevented  from  acting 

so  is  the  utterance  in  Day  v.  Savadge  (Hobart,  212-218),  (85-*876).  How 
this  may  be  in  an  action  at  law  or  suit  in  equity,  in  which  the  judge  was 
a  party  named  or  a  party  in  fact,  and  where  his  interest  was  so  close 
and  immediate  that  there  would  be  a  direct  pecuniary  gain  or  loss,  or 
direct  personal  triumph  or  defeat,  to  him  by  the  result,  we  are  not  now 
called  upon  to  say.  For  one  I  should  loathe  to  hold,  that  by  force  of  a 
legislative  act,  one  could  bring  an  action  in  which  his  interests  were  in- 
volved, in  a  court  of  which  he  was  the  sole  judge,  and  could  sit  alone  to 
hear  and  decide  it.  But  we  know  that  in  cases  in  which  the  interest  is 
not  direct,  but  remote ;  is  not  certain  and  palpable,  but  contingent  and 
problematical;  is  not  great  and  important,  but  minute;  statutes,  not 
specific,  but  general,  which  have  had  the  effect  to  confer  exclusive  juris- 
diction, where  there  was  an  interest  in  the  result,  have  been  uj^held  as 
valid.  In  Strange,  1173  {supra),  we  are  referred  to  the  act  of  16  Geo.  II., 
c.  18,  which  was  passed  to  remedy  the  difficulty  arising  from  the  de- 
cision there  reported,  which  act  gave  power  to  all  and  every  justice  or 
justices  of  the  peace  to  act  in  matters  concerning  parochial  rates,  not- 
withstanding they  or  he  were  chargeable  therewith.  (7  Evans  Coll. 
Stats.,  p.  476.)  I  do  not  find  any  adjudication  upon  this  act  upholding 
or  denying  the  validity  of  it.  From  the  fact  that  it  was  passed  as  early  as 
1744,  and  the  case  above  cited  from  Strange,  with  the  reference  therein 
to  the  act,  appears  in  the  third  edition  of  those  reports,  published  in 
1792,  without  note  of  any  judicial  disapprobation ;  and  from  the  further 
fact  that  another  act  of  Parliament  of  like  effect  was  passed  (the  30  and 
31  of  Yict.(c.  115,  sec.  2) ;  see  Fisher's  Digest,  vol.  iii.,  p.  5107;  I  infer 
that  the  character,  object,  and  effect  of  the  enactment  did  not  meet 
with  judicial  reprobation.  But  we  are  not  left  to  inferences.  There 
have  been  adjudications  upon  statutes  conferring  exclusive  jurisdiction 
in  general  terms,  wherein  it  has  been  held  that  the  force  of  the  enact- 
ment overrode  the  rule  which  disqualified  by  reason  of  interest.  In 
Massachusetts  it  has  been  held  that  the  interest  which  a  justice  of  the 
peace  has  in  a  penalty  payable  to  his  town,  though  minute,  takes  away 
his  jurisdiction  of  the  offense.  (Pearce  v.  Atwood,  supra.)  Yet  the 
Supreme  Court  of  that  state  has  repeatedly  held,  that  where  there  is 
but  one  tribunal  authorized  by  statute  to  take  cognizance  of  the  offense, 
such  interest  does  not  disqualify.  (Comm.  v.  Ryan,  supra;  Hill  v.  Wells, 
6  Pick.  104;  see  remarks  of  Shaw,  Ch.  J.,  in  Comm.  v.  Emery,  11  Cush., 
406;  Comm.  v.  Burding,  12  id.  506;  Hanscomb  v.  Russell,  11  Gray,  373.) 
In  this  state  we  have  statutes  relieving  jurors,  witnesses,  and  certain 
officers  from  the  disqualification  of  being  interested  in  the  penalties 
going  into  the  county  treasury  or  for  the  benefit  of  a  town.  (2  R.  S.,  p. 
420,  sec.  58 ;  p.  551,  sec.  2 ;  1  id.  357,  sec.  4 ;  see  Wood  v.  Rice,  6  Hill,  59.) 
These  enactments  were  not  new  in  principle,  but  copied  from  prior  stat- 


1  People  V.  Wheeler,  21  N.  Y.  82,  86. 


JUDGES   DISQUALIFIED    BY   INTEREST,    ETC.  411 

by  writ  of  prohibition.^  And  where  he  refuses  to  act  on 
the  ground  that  he  is  disqualified,  when  he  is  not  so  in 
fact,  he  may  be  compelled  to  act  by  mandamus.^  So  he 
may  be  compelled  by  mandamus  to  withdraw  from  the 
bench  and  call  a  special  judge  where  he  is  disqualified  or 
the  necessary  atiidavit  or  recusation  has  been  filed.^ 

In  some  of  the  states  provision  is  made  disqualifying 
judges  who  have  acted  in  a  lower  court  to  sit  in  the  same 
cause  on  appeal.*     But  in  the  absence  of  such  a  statute  he 

utes,  and  which  had  been  passed  probably  to  meet  cases  in  which  it  had 
been  adjudged  that  there  was  a  disqualifying  interest.  (See  Wood  v. 
Stoddard,  2  J.  R.  195.)  The  interest  of  an  assessor  of  taxes  in  a  town  is 
very  like  that  which  is  attributed  to  Judge  Metcalfe  in  the  case  in  hand, 
save  that  the  official  action  which  may  be  influenced  by  it  is  more  di- 
rect. An  assessor  has  a  voice  himself  in  fixing  the  valuation  of  his  own 
land,  and  that  of  all  other  owners  in  the  town.  It  is  a  judicial  act. 
(Swift  V.  City  of  Poughkeepsie,  37  N.  Y.  511.)  Each  assessor  must  be 
present  at  the  meeting  of  the  board,  if  he  does  his  duty,  and  the  assess- 
ment is  the  joint  act  of  all,  or  at  least  a  majority  of  the  board.  (People 
ex  rel.  v.  Sups,  of  Chenango  Co.,  11  N.  Y.  563.)  So  members  of  boards 
of  supervisors  and  town  auditors  pass  upon  their  own  accounts.  No 
fault  has  ever  been  found  with  this,  for  the  necessity  of  the  case  de- 
manded that  it  be  so.  So,  merely  formal  acts,  necessary  to  enable  the 
case  to  have  progress,  an  interested  judge  may  do.  Thus,  where  a  cir- 
cuit judge  has  been  counsel  in  a  cause  (which  relation  is  akin  to  that 
of  having  a  personal  interest  in  it,  and  is  often  made  by  statute  a  dis- 
qualification), he  may  execute  an  order  of  a  higher  court  directed  to  the 
circuit  judge  (State  v.  Collins,  5  Wis.  339);  and  judges  of  the  United 
States  Circuit  Court,  where  both  are  interested  or  have  been  of  counsel, 
may  make  an  order  certifying  the  case  to  another  circuit.  (Richardson 
V.  City  of  Boston,  1  Curtis,  250.) 

"  I  think,  then,  that  upon  the  facts  of  this  case,  as  already  stated,  we 
may  formulate  a  rule  thus:  That  where  a  judicial  oflBcer  has  not  so  di- 
rect an  interest  in  the  cause  or  matter  as  that  the  result  must  necessarily 
affect  him  to  his  personal  or  pecuniary  loss  or  gain,  or  where  his  per- 
sonal or  pecuniary  interest  is  minute,  and  he  has  so  exclusive  jurisdic- 
tion of  the  cause  or  matter  by  constitution  or  by  statute,  as  that  his  re- 
fusal to  act  will  prevent  any  proceeding  in  it,  then  he  may  act  so  far  as 
that  there  may  not  be  a  failure  of  remedy,  or,  as  it  is  sometimes  ex- 
pressed, a  failure  of  justice."     Matter  of  Ryers,  72  N.  Y.  1,  13. 

1  Heilbron  v.  Campbell,  23  Pac.  Rep.  122. 

^  Ex  parte  State  Bar  Association,  8  Sou.  Rep.  768. 

3  State  V.  Judge,  39  La.  Ann.  994;  3  Sou.  Rep.  91, 

*  Phillips  V.  Germania  Mills,  13  N.  E.  Rep.  923. 


412  JUDGES. 

is  not  disqualiiied.'  A  judge  may  be  disqualified  to  hold 
the  office  of  judge,  and  therefore  hicompetent  to  perform 
any  of  its  duties,  by  reason  of  want  of  proper  age,  citizen- 
ship, or  the  like.^  But  such  grounds  of  disqualification 
can  not  be  taken  advantage  of  in  any  pending  action  as 
between  the  parties.  The  question  must  be  tested  by  a 
direct  proceeding  against  the  judge. 

63.  Bias  and  prejudice  of  judges  as  AFFECTma  jurisdic- 
tion.— Bias  or  prejudice  of  the  judge  is,  in  many  of  the 
states,  made  a  ground  for  changing  the  venue  of  a  cause.^ 
This  is  upon  the  theory  that  every  litigant  is  entitled  to  a 
fair  and  impartial  trial,  and  that  such  a  hearing  can  not 
be  had  before  one  whose  mind  is  not  free  from  such  feel- 
ing as  would  naturally  incline  the  mind  of  the  court  to- 
ward one  of  the  parties  or  against  the  other.  But  usually 
it  is  held  that  such  a  state  of  mind  on  the  part  of  a  judge 
does  not  absolutely  disqualify  him  or  render  any  judgment 
rendered  by  him  void.*  However,  if  a  change  of  venue  is 
allowed  on  this  ground,  the  filing  of  the  necessary  affi- 
davit or  recusation  divests  the  court  of  all  jurisdiction, 
under  the  decisions  of  most  of  the  states,  and  any  acts  of 
his  thereafter  are  wholly  void.-^ 

In  some  of  the  states  the  bias  or  prejudice  of  the  judge 
is  not  made  a  cause  of  disqualification,  or  a  ground  for 
change  of  venue,  and  in  such  states  such  a  frame  of  mind, 
however  embarrassing  to  the  parties,  or  the  judge,  does 
not  afi'ect  his  right  or  duty  to  sit  in  the  case.^ 

'  Pierce  v.  Delamater,  1  N.  Y.  17. 

»  People  V.  Wilson,  15  III.  388.  '  j^^^^^  gg^g  45^  g2. 

*  Ante,  sec.  62;  Sjorberg  v.  Nordin,  26  Minn.  501;  5  N.  W.  Rep.  677 
Taylor  v.  Williams,  26  Tex.  583 ;  Heflin  v.  State,  88  Ga.  151 ;  14  S.  E 
Rep.  112;  Ex  parte  Harris,  26  Fla.  77;  7  Sou.  Rep.  1;  12  Am.  &  Eng 
Enc.  of  Law,  52 ;  Foreman  v.  Hunter,  59  la.  550 ;  13  N.  W.  Rep.  659. 

5  Ante,  sees.  24  p.  151,  46  p.  336,  62;  Smelzer  v.  Lockhart,  97  Ind.  315 
Krutz  V.  Howard,  70  Ind.  174,  179;  Shoemaker  v.  Smith,  74  Ind.  71,  76 
Freeman  on  Judg.,  sec.  146. 

6  12  Am.  &  Eng.  Enc.  of  Law,  52;  McCauley  v.  Weller,  12  Cal.  500 
People  V.  Williams,  24  Cal.  31 ;  Sjorberg  v.  Nordin,  26  Minn.  501 ;  5  N 
W.  Rep.  677;   Taylor  v.  Williams,  26  Tex.  583;   People  v.  Mahoney,  18 
Cal.  180. 


I 


BIAS    AND    PREJUDICE    OF    JUDGES,  ETC.  413 

The  bias  or  feeliug  of  favor  or  of  hostility  of  the  judge 
may  arise  from  a  cause  which  disqualifies,  absolutely,  such 
as  interest  in  the  result,  having  been  of  counsel  in  the 
cause,  consanguinity  or  affinity  or  the  like.^  But  in  some 
of  the  cases  the  disqualification  is  extended  to  friendly  or 
hostile  relations  caused  by  circumstances  not  affecting  th©- 
personal  interests  of  the  judge  or  those  connected  with 
him.^ 

*  Ante,  sec.  62. 

2  "  The  friendly  or  hostile  relations  existing  between  a  judge  and  one 
of  the  parties  may  be  good  ground  of  recusation :  Voet,  uhi  sup. 

"  Of  the  first  class,  there  are  various  circumstances  referred  to  as  ex- 
amples indicating  a  state  of  feeling  inconsistent  with  impartiality ;  as 
where  the  judge  has  received  himself,  or  his  near  relative,  important 
benefits  or  donations  from  one  of  the  parties:  Toihier,  ubi  sup.;  where 
the  relation  of  master  and  servant  exists  between  the  judge  and  a 
party:  Pothier,  ubi  sup.;  Smith  v.  Boston,  etc.,  R.  R.,  36  N.  H.  492;  or 
where  the  relation  of  protection  and  subjection  exists  between  the 
judge  and  a  party,  as  in  the  case  of  a  guardian  and  ward:  Pothier,  ubi 
sup.  Qui  jurisdictioni  preest  neque  sibi  jus  dicere  debet,  neque  uxori  rel  liberis 
suis,  neque  libertis  vel  caeleris  quos  secum  habet ;  Dig.  2,  1,  10;  Ersk.  Inst., 
tit.  2,  sec.  26;  1  Rolle  Abr.  492;  6  Vin.  Abr.  1,  tit.  Connusance,  O.  It  is 
a  good  cause  to  remove  a  plea,  that  the  bailiff  who  is  the  judge  is  of  the 
robes  of  the  plaintiff:  12  H.  4,  13;  S.  P.  Brooke  Abr.,  Cav^e  a  remover, 
pi.  13. 

"  But  a  creditor,  lessee,  or  debtor  may  be  judge  in  the  case  of  his 
debtor,  landlord,  or  creditor,  except  in  cases  where  the  amount  of  the 
party's  property  involved  in  the  suit  is  so  great  that  his  ability  to  meet 
his  engagements  with  the  judge  may  depend  upon  the  success  of  his 
suit :     Pothier,  ubi  sup. 

"Enmity,  indicated  by  threats  verbal  or  written,  pending,  or  shortly 
preceding  the  suit,  Voet  and  Pothier,  ubi  sup.,  or  otherwise,  Turner  v. 
Commonwealth,  2  Met.  (Ky. )  619,  and  a  lawsuit  pending  between  a 
judge  and  a  party,  are  good  causes  for  recusation.  Generally,  such  a 
lawsuit  between  a  party  and  the  nearest  relative  of  the  judge  is  not 
sufficient  cause  of  recusation,  though  this  may  depend  upon  the  state  of 
feeling  between  the  judge  and  the  party,  to  which  the  lawsuit  has  given 
rise.  The  bitterness  of  feeling  resulting  from  a  lawsuit  is  supposed  to 
subside  when  the  lawsuit  has  terminated.  A  party  can  not  disqualify 
a  judge  to  sit  in  his  case  by  bringing  an  action  against  him  after  the 
principal  suit  is  commenced. 

"Under  this  head  falls  the  class  of  cases  where  a  judge  has  a  bias  or 
prejudice  in  favor  of  or  against  one  of  the  parties.  Such  bias,  caused 
by  hearing  an  ex  parte  statement  of  the  facts  of  a  case,  would  be  a  dis- 
qualification to  try  it.  A  judge,  anxiously  on  his  guard  to  hear  nothing 
of  the  cases  which  may  come  before  hira,  except  what  is  said  in  court 


414  JUDGES. 

But  while  such  a  state  of  friendly  or  hostile  relation  to 
one  of  the  parties  is  sometimes  made  a  cause  of  recusation 
by  statute,  and  sometimes  held  to  be  sufficient  cause  for 
challenging  the  judge,  independently  of  any  statute  on 
the  subject,  it  is  such  an  objection  as  may  be  waived  by 
the  parties;  and  if  not  made  before  issue  joined,  or,  as 
held  in  some  cases,  before  trial,  the  judgment  or  proceed- 
ings are  valid,  and  can  not  thereafter  be  questioned  on 
that  ground.^ 

64.  Liability  of  judge  acting  without  jurisdiction. — If 
a  judge  acts  to  the  injury  of  another,  respecting  a  subject- 
matter  over  which  he  is  wholly  without  jurisdiction,  or 
where  he  has  not  jurisdiction  of  the  person,  he  is  liable  as 
a  trespasser  for  such  acts.^  But  if  he  .has  jurisdiction  of 
the  subject-matter  and  of  the  person,  and  acts  beyond,  or 
in  excess  of  his  jurisdiction,  he  can  not  be  held  so  liable.^ 
Nor  can  he  be  held  liable  for  error  in  judgment  where  he 
has  jurisdiction,  although  such  error  may  be  shown  to  be 
the  result  of  a  lack  of  due  care  and  prudence,*  or  where 
the  act  is  shown  to  have  been  done  maliciously  or  cor- 
ruptly.^ 

and  in  presence  of  the  adverse  party,  may  yet  find  that  he  has  been 
imposed  upon  by  artful  statements  designed  to  create  a  prejudice  in  his 
mind  relative  to  the  case.  In  such  a  case,  he  may  well  decline  to  sit  in 
the  case.  Williams  v.  Robinson,  6  Cush.  334;  Rev.  Stat.,  c.  176,  sec.  22; 
Stat.  1855,  c.  1659,  sec.  23."  Moses  v.  Julian,  45  N.  H.  52;  84  Am.  Dec. 
114,  121. 

1  Ante,  sees.  49,  62;  Moses  v.  Julian,  45  N.  H.  52;  84  Am.  Dec.  114. 

''Bradley  v.  Fisher,  13  Wall.  335;  Lange  v.  Benedict,  73  N.  Y.  12;  29 
Am.  Rep.  80;  Lancaster  v.  Lane,  119  111.  242 ;  Inos  v.  Winspear,  18  Cal.  397. 

3  Bradley  v.  Fisher,  13  Wall.  335 ;  Stewart  v.  Cooley,  23  Minn.  347 ;  23 
Am.  Rep.  690,  692,  note ;  Lancaster  v.  Lane,  119  111.  242 ;  Yates  v.  Lansing, 
5  Johns.  (N.  Y.)  282;  6  Am.  Dec.  290;  Taylor  v.  Doremus,  16  N.  J.  Law, 
473;  Grove  ?;.  Van  Duyn,  44  N.  J.  Law,  654;  43  Am.  Rep.  412. 

*■  Ayres  v.  Russell,  3  N.  Y.  Supl.  338 ;  Merwin  v.  Rogers,  2  N.  Y.  Supl. 
396;  Turpen  v.  Booth,  56  Cal.  65;  38  Am.  Rep.  48. 

'  Bradley  v.  Fisher,  13  Wall.  335;  Merwin  v.  Rogers,  2  N.  Y.  Supl.  396; 
Taylor  v.  Doremus,  16  N.  J.  Law,  473;  Pratt  v.  Gardner,  56  Mass.  (2 
Cush.)  63;  48  Am.  Dec.  652;  Turpen  v.  Booth,  56  Cal.  65;  38  Am.  Rep. 
48;  Pickett  v.  Wallace,  57  Cal.  555. 

"  Nor  can  this  exemption  of  the  judges  from  civil  liability  be  affected 


LIABILITY  OF  JUDGE  ACTING  WITHOUT  JURISDICTION.       415 

The  test  of  liability,  or  the  dividing  line  between  such 
wrongful  or  erroneous  acts  as  are  actionable  or  not,  is 
that  which  distinguishes  judgments  or  proceedings  which 
are  absolutely  void  for  want  of  jurisdiction,  and  such  as 
are  merely  voidable  or  erroneous.^  But  immunity  from 
civil  action,  where  the  act  appears  to  have  been  eorruptly- 
or  maliciously  done,  does  not  extend  to  quasi  judicial 
officers,  such  as  assessors  of  land  for  taxation  and  the  like.^ 
And  a  judge  may  be  held  liable  for  a  willful  and  malicious 
conspiracy  witlxothers  to  prosecute,  through  his  court,  an 
innocent  party,  although  his  acts  in  court,  in  furtherance 
of  such  conspiracy,  are  not  actionable.^ 

by  the  motives  with  which  their  judicial  acts  are  performed.  The 
purity  of  their  motives  can  not  in  this  way  be  the  subject  of  judicial 
inquiry.  This  was  adjudged  in  the  case  of  Floyd  and  Barker,  reported 
by  Coke,  in  1608  (12  Coke,  25),  where  it  was  laid  down  that  the  judges 
of  the  realm  could  not  be  drawn  in  question  for  any  supposed  corrup- 
tion impeaching  the  verity  of  their  records,  except  before  the  king  him- 
self, and  it  was  observed  that  if  they  were  required  to  answer  otherwise, 
it  would  '  tend  to  the  scandal  and  subversion  of  all  justice,  and  those 
who  are  the  most  sincere  would  not  be  free  from  continual  calumni- 
ations.' "     Bradley  v.  Fisher,  13  Wall.  335. 

'  Bradley  v.  Fisher,  13  Wall.  335. 

"  The  general  rule,  which  applies  to  all  such  cases,  and  which  is  to  be 
observed  in  this,  has  been  in  olden  times  stated  thus :  Such  as  are  by 
law,  made  judges  of  another,  shall  not  be  criminally  accused,  or  made 
liable  to  an  action  for  what  they  do  as  judges;  to  which  the  Year  Books 
(43  Edw.  3,  9;  9  Id.  4,  3)  are  cited  in  Floyd  v.  Baker  (12  Coke,  26).  The 
converse  statement  of  it  is  also  ancient ;  where  there  is  no  jurisdiction 
at  all,  there  is  no  judge ;  the  proceeding  is  as  nothing  (Perkin  v.  Proctor, 
2  Wilson,  382-384),  citing  the  Marshalsea  case  (10  Coke,  65-76),  which 
says:  '  Where  he  has  no  jurisdiction,  non  est  judex.'  It  has  been  stated 
thus,  also :  No  action  will  lie  against  a  judge,  acting  in  a  judicial  capac- 
ity, for  any  errors  which  he  may  commit,  in  a  matter  within  his  juris- 
diction. (Gwynne  r.  Pool,  Lutw.  290.)  It  has  been,  in  modern  days, 
carried  somewliat  further,  in  the  terms  of  the  statement:  Judges  of 
superior  or  general  jurisdiction  are  not  liable  to  civil  actions  for  their 
judicial  acts,  even  when  such  acts  are  in  excess  of  their  jurisdiction, 
and  are  alleged  to  have  been  done  maliciously  and  corruptly.  (Bradley 
V.  Fisher,  13  Wall.  351.)"  Lange  v.  Benedict,  73  N.  Y.  12,  25;  29  Am. 
Rep.  80. 

'Cooley  on  Torts,  411 ;  Elmore  v.  Overton,  104  Ind.  548 ;  54  Am.  Eep. 
343. 

'  Stewart  v.  Cooley,  23  Minn.  347 ;  23  Am.  Rep.  690. 


416  JUDGES. 

If  a  judge  is  called  upon  to  decide  whether,  under  a 
given  state  of  facts,  he  should  act  or  not,  and  he  has 
power  to  determine  such  question,  the  fact  that  he  deter- 
mines this  preliminary  question  wrongly,  and  follows  it 
by  acting  where  he  has  in  fact  no  jurisdiction  to  proceed, 
does  not  render  him  liable.  The  determination  of  the 
preliminary  question  is  a  judicial  act,  and  what  follows  is 
the  execution  of  a  merely  erroneous  decision,  for  which 
he  can  not  be  held  personally  responsible.^  But  it  is  dif- 
ferent where  no  facts  are  shown  to  authorize  the  assump- 

'Ayers  v.  Russell,  3  N.  Y.  Supl.  338;  Bocock  v.  Cochran,  32  Hun 
(N.  Y.),  521,  523;  Stewart  v.  Hawley,  21  Wend.  552;  Clark  v.  Spicer,  6 
Kan.  440. 

"  The  defendant,  the  recorder,  had  the  powers  of  a  judge  of  a  court  of 
record.  His  approval  of  the  certificate  of  the  physician  was  a  judicial 
act.  It  was  an  act  analogous  to  the  issuing  of  a  warrant  for  the  arrest 
of  an  alleged  criminal  upon  information  verified  by  oath.  If  the  infor- 
mation fills  the  requirements  of  the  statute,  the  magistrate's  jurisdic- 
tion is  complete.  But  the  information  may  be  incomplete  in  fact. 
Some  essential  specified  in  the  statute  may  be  omitted.  The  magistrate 
may  not  be  learned  in  the  law,  or,  if  learned,  not  always  sound  in  judg- 
ment. He  looks  at  this  information,  and  decides  that  a  case  exists, 
when  in  fact  and  in  law  there  is  no  case.  He  issues  his  warrant  when 
he  ought  not,  and  the  result  is  that  a  man  who  has  committed  no  crime, 
and  against  whom  no  crime  is  alleged,  is  arrested,  and  temporarily  de- 
jirived  of  his  liberty.  In  one  aspect  of  the  case  the  magistrate  had  no 
jurisdiction,  because  the  law  gives  him  no  jurisdiction  to  issue  a  war- 
rant unless  it  appears  that  an  offense  has  been  committed,  and  there  is 
reasonable  cause  to  believe  that  the  accused  committed  it.  A  judge 
upon  habeas  corpus  ought  to  decide  that  the  magistrate  had  no  jurisdic- 
tion to  issue  the  warrant.  Why,  then,  can  not  the  magistrate  be  pur- 
sued by  the  injured  individual?  Because,  when  the  information  was 
presented  to  him,  it  was  his  duty  to  decide  what  his  duty  was  respect- 
ing it.  He  had  jurisdiction  of  that  question,  and  his  wrong  decision 
upon  it  was  a  judicial  error.  He  had  a  duty  to  perform,  and  the  law 
does  not  punish  him  for  a  mistake  in  trying  to  do  it  right.  In  Lange  v. 
Benedict,  73  N.  Y.  35,  the  judge  pronounced  a  sentence  which  he  had 
no  jurisdiction  to  pronounce,  but  he  supposed  he  had,  and  it  was  his 
duty  to  decide  whether  he  had  or  not.  He  had  the  statute  for  his 
guide;  but  he  had  to  interpret  the  statute,  and  he  did  not  interpret  it 
aright.  But  he  had  to  decide  ;  he  was  no  mere  volunteer.  He  made  a 
mistake;  but  he  made  it  in  the  discharge  of  his  master's  (the  govern- 
ment's) business,  and  his  wrongful  act  was  the  government's,  not  his 
own,  and  he  incurred  no  personal  liability."  Ayers  v.  Russell,  3  N.  Y. 
Supl.  338,  340. 


LIABILITY  OF  JUDGE  ACTING  WITHOUT  JURISDICTION.       417 

tion  of  jurisdiction,  as  in  that  case  the  question  of  the 
sufficiency  of  the  facts  does  not  arise,  and  there  is  noth- 
ing to  decide  and  no  foundation  whatever  for  subsequent 
acts  done.^ 

It  has  been  held  that  where  a  justice  of  the  peace  is  au- 
thorized to  issue  his  warrant  only  upon  a  complaint  in 
writing  being  filed  charging  a  person  with  the  commission 
of  an  ofiense,  and  a  warrant  is  issued  upon  a  complaint 
charging  a  bare  trespass,  and  not  a  public  offense,  the  jus- 
tice issuing  the  warrant  is  liable  to  a  civil  action  therefor.^ 
But  this  does  not  accord  with  the  rule  as  above  stated,  nor 
with  the  weight  of  authority  on  the  subject.  It  was  for 
the  justice  to  decide  whether  the  facts  charged  in  the  com- 
plaint constituted  an  offense  or  not,  and  for  an  error  in  his 
determination  he  should  not  be  held  liable. 

The  protection  accorded  extends  only  to  such  acts  as  are 
done  by  a  judge,  as  such,  and  in  his  judicial  capacity.' 
And  in  some  of  the  cases  the  rule  is  confined  to  judges  of 
courts  of  superior  jurisdiction.*  So  in  other  cases  a  judge 
of  a  court  of  inferior  or  limited  jurisdiction  is  held  to  be 
liable  for  an  act  done  in  excess  of  his  jurisdiction.^  But 
we  apprehend  that  at  the  present  day  the  protection  ex- 
tends equally  to  courts  of  inferior  or  limited  jurisdiction, 
under  the  same  circumstances,  although  the  manner  of 
establishing  the  jurisdiction  of  the  two  classes  of  courts 

1  Blodgett  V.  Race,  18  Hun,  132;  Bocock  v.  Cochran,  32  Hun,  521,  523; 
Truesdell  v.  Combs,  33  Ohio  8t.  186. 

2  Truesdell  r.  Combs,  33  Ohio  St.  186,  192. 

^  "  It  is  to  be  seen  that  in  these  different  modes  of  stating  the  prin- 
ciple, there  abides  a  qualification.  To  be  free  from  liability  for  the 
act,  it  must  have  been  done  as  judge,  in  his  judicial  capacity;  it  must 
have  been  a  judicial  act.  So  it  always  remains  to  be  determined,  when 
is  an  act  done  as  judge,  in  a  judicial  capacity?  And  this  is  the  diffi- 
culty which  has  most  often  been  found  in  the  use  of  this  rule,  and 
which  is  present  here ;  to  determine  when  the  facts  exist  which  call 
into  play  that  qualification."  Lange  v.  Benedict,  73  N.  Y.  12,  25;  29 
Am.  Rep.  80. 

♦Bradley  v.  Fisher,  13  Wall.  335;  Lange  r.  Benedict,  73  X.  Y.  12,  27; 
29  Am.  Rep.  80. 

^  Piper  V.  Pearson,  68  Mass.-  (2  Gray),  122 ;  61  Am.  Dec.  438;  Clarke  v. 
May,  Id.  410;  61  Am.  Dec.  470;  Truesdell  v.  Combs,  33  Ohio  St.  186. 


418  JUDGES. 

may  be  different.^  It  is  not  necessary  that  the  facts  shown 
in  the  particular  action  bring  the  case  within  the  jurisdic- 
tion of  the  court  or  state  a  cause  of  action.  It  is  enough 
if  the  court  or  judge  has  jurisdiction,  generally,  of  the 
subject-matter  to  which  the  action  relates.' 

The  immunity  of  judges  from  civil  actions  for  acts  done 
by  them  is  not  so  much  out  of  consideration  for  them  as 
for  the  position  they  occupy  and  the  functions  they  exer- 
cise. It  is  to  preserve  the  independence  and  authority  of 
the  judiciary,  and  preserve  its  respect.^     The  exemption  is 

1  Ante,  sees.  20,  22,  23,25;  Merwin  v.  Rogers,  2  N.  Y.  Supl.  396;  Cooley 
on  Torts,  408-410;  Lancaster  v.  Lane,  19  111.  242;  Bocock  v.  Cochran,  32 
Hun  (N.  Y.),  521 ;  Fausler  r.  Parsons,  6  W.  Va.  486,  491 ;  20  Am.  Rep. 
431;  Yates  r.  Lansing,  5  Johns.  (N.  Y.)282,  292;  East  River  Gas  L.  Co. 
V.  Donnelly,  25  Hun,  614;  Pratt  v.  Gardner,  56  Mass.  (2  Cush.)  63;  48 
Am.  Dec.  652. 

2  Ante,  sec.  8;  Hunt  v.  Hunt,  72  N.  Y.  217,  228;  37  Am.  Dec.  130; 
Lange  v.  Benedict,  73  N.  Y.  12,  27;  29  Am.  Rep.  80. 

"  Jurisdiction  of  the  subject-matter  is  power  to  adjudge  concerning 
the  general  question  involved,  and  is  not  dependent  upon  the  state  of 
facts  which  may  appear  in  a  particular  case  arising,  or  which  is  claimed 
to  have  arisen,  under  that  general  question.  One  court  has  jurisdiction 
in  criminal  cases;  another  in  civil  cases;  each  in  its  sphere  has  juris- 
diction of  the  subject-matter.  Yet  the  facts,  the  acts  of  the  party  pro- 
ceeded against,  may  be  the  same  in  a  civil  case  as  in  a  criminal  case — as, 
for  instance,  in  a  civil  action  for  false  and  fraudulent  representations 
and  deceit,  and  in  a  criminal  action  for  obtaining  property  by  false  pre- 
tenses. We  should  not  say  that  the  court  of  civil  powers  had  jurisdic- 
tion of  the  criminal  action,  nor  vice  versa,  though  each  had  power  to 
pass  upon  allegations  of  the  same  facts.  So  that  there  is  a  more  general 
meaning  to  the  phrase  '  subject-matter"  in  this  connection,  than  power  to 
act  upon  a  particular  state  of  facts.  It  is  the  power  to  act  upon  the 
general,  and,  so  to  speak,  the  abstract  question,  and  to  determine  and 
adjudge  whether  the  particular  facts  presented  call  for  the  exercise  of 
the  abstract  power."     Hunt  v.  Hunt,  72  N.  Y.  217,  229;  37  Am.  Dec.  130. 

3  Fausler  v.  Parsons,  6  W.  Va.  486,  490;  20  Am.  Rep.  431. 

"The  doctrine  that  an  action  will  not  lie  against  a  judge  for  a  wrong- 
ful commitment,  or  for  an  erroneous  judgment,  or  for  any  other  act 
made  or  done  by  him  in  his  judicial  capacity,  is  as  thoroughly  estab- 
lished as  are  any  other  of  the  primary  maxims  of  the  law.  Such  an 
exemption  is  absolutely  essential  to  the  very  existence,  in  any  valuable 
form,  of  the  judicial  office  itself;  for  a  judge  could  not  be  either  re- 
spected or  independent  if  his  motives  for  his  official  actions  or  his  con- 
clusions, no  matter  how  erroneous,  could  be  put  in  question  at  the  in- 
stance of  every  malignant  or  disappointed  suitor.     Hence  we  find  this 


LIABILITY  OF  JUDGE  ACTING  WITHOUT  JURISDICTION.       419 

for  the  benefit  of  the  public,  and  not  merely  for  the  pro- 
tection of  the  judge. ^ 

Where  a  judge,  once  having  jurisdiction,  has  been  de- 
prived of  it,  for  example,  by  a  change  of  venue,  he  is 
liable,  if  he  proceeds  further  in  the  action,  the  same  as  if 
he  had  acted  without  jurisdiction  from  the  beginning.^ 

judicial  immunity  has  been  conferred  by  the  laws  of  every  civilized 
people."     Grove  v.  Van  Duyn,  44  N.  J.  Law,  656;  43  Am.  Rep.  412. 
1  Randall  v.  Brigham,  7  Wall.  523.  »  Hatch  v.  Galvin,  50  Cal.  441. 


420      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION, 


n 


CHAPTER  VI. 

COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

65.  Generally. 

66.  Constitutional  jurisdiction. 

67.  Probate  jurisdiction. 

68.  Special  cases  and  proceedings. 

69.  Criminal  jurisdiction. 

70.  Maritime  jurisdiction. 

71.  Impeachment. 

72.  Contempts. 

73.  Divorce. 

74.  Attachments. 

75.  Garnishment. 

76.  Sales  of  real  estate. 

77.  Arbitration. 

78.  Ne  exeat  and  arrest  and  bail. 

79.  Injunctions. 

80.  Mandamus. 

81.  Prohibition. 

82.  Habeas  corpus. 

83.  Quo  warranto. 

84.  New  trials  and  vacation  of  judgments. 

85.  Writs  of  error. 

86.  Certiorari. 

87.  Bills,  and  Writs,  of  review. 

88.  Appeals. 

89.  Naturalization. 

90.  Pardons. 

65.  Generally. — To  attempt,  at  the  present  day,  to 
separate  the  common  law,  equity,  constitutional,  and 
statutory  jurisdiction  of  courts  and  treat  of  each,  inde- 
pendently of  the  other,  would  lead  to  unnecessary  and 
useless  repetition  and  consequent  confusion.  These  dif- 
ferent kinds  of  jurisdiction  have  been  so  intermingled  by 
constitutional  and  statutory  provisions  that  the  common 
law  or  equity  can  no  longer  be  treated,  in  considering  this 
subject,  as  a  separate  body  of  laws  or  rules  of  procedure. 
Such  rules  have  been  so  added  to  here,  and  modiiied  there, 


if 


GENEKALLY.  421 

by  legislation,  that  the  common  law  and  equity  rules  affect- 
ing jurisdiction  can  no  longer  be  said  to  exist  independ- 
ently of  such  legislation.  In  many  cases  courts  of  gen- 
eral jurisdiction  are  vested  by  constitutional  or  statutory 
provisions  with  common  law  and  equity  jurisdiction.^  In 
such  cases  we  must,  although  jurisdiction  is  given  by 
express  legislative  enactment,  look  to  the  common  law 
and  equity  to  ascertain  the  extent  and  nature  of  the  juris- 
diction thus  granted.^ 

A  grant  of  common  law  jurisdiction  has  been  held  to 
include  not  merely  suits  which  the  common  law  recog- 
nized among  its  old  and  settled  proceedings,  but  suits  in 
which  legal  rights  were  to  be  ascertained  and  determined 
in  contradistinction  to  those  where  equitable  rights  alone 
were  regarded  and  equitable  remedies  were  administered; 
or  where,  as  in  the  admiralty,  a  mixture  of  public  law 
and  of  maritime  law  and  equity  was  often  found  in  the 
same  suit,^  and  includes  criminal  actions  which  are  cases 
at  law.* 

The  grant  of  jurisdiction  under  the  codes  is  sometimes 
measured  by  the  "  civil  action  "  as  defined  by  such  codes. 
In  many  cases  the  jurisdiction  of  courts  is  specifically 
defined,  without  reference  to  the  common  law,  or  equity, 
and  yet  the  jurisdiction  thus  granted  is  in  its  nature  the 
same  as  existed  in  the  common  law  and  equity  courts  of 
England.  And  remedies  are  provided  by  statute  that 
could  not  have  been  administered  by  either  a  common  law 
or  equity  court  under  their  general  jurisdiction,  as  it  ex- 
isted without  the  aid  of  statutory  provisions.^  In  still 
other  cases  the  common  law  and  equity  rules  affecting 
jurisdiction  are  designedly  modified,  enlarged,  or  limited 
by  legislative  enactment. 

'  Bouton  V.  City  of  Brooklyn,  7  How.  Pr.  198,  205;  Chumasero  r.  Potts, 
2  Mont.  242;  Territory  r.  Flowers,  2  Mont.  531;  Parsons  v.  Bedford,  3 
Pet.  433. 

''  Bouton  V.  City  of  Brooklyn,  7  How.  Pr.  198. 

'  Parsons  v.  Bedford,  3  Pet.  433,  446 ;  Territory  v.  Flowers,  2  Mont.  531. 

*  Territory  v.  Flowers,  2  Mont.  531. 

^  Folger  V.  Columbia  Ins.  Co.,  99  Mass.  267,  274. 


422     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

Statutes  have  provided  different  methods  of  obtaining 
equitable  relief,  particularly  as  respects  what  is  sometimes 
called  the  assistant  jurisdiction  of  courts  of  chancery,  as 
in  case  of  discovery  and  the  like.'  And  in  all  of  these 
cases  the  jurisdiction  is  really  statutory,  although  it  is 
measured  in  some  cases  by  common  law  and  equity  rules. 

The  tendency  of  the  courts,  and  particularly  of  the  fed- 
eral courts,  seems  to  be  to  extend  and  broaden  their  equi- 
table jurisdiction  by  a  most  liberal  construction  of  the 
laws  and  usages  fixing  and  defining  their  powers.^ 

Formerly  the  common  law  and  equity  courts  were  en- 
tirely separate  and  independent  courts,  and  neither  could 
exercise  any  jurisdiction  belonging  to  the  other.  But 
now,  in  most  of  the  states,  and  in  England,  these  courts 
have  been  consolidated  into  one;  the  distinctions  between 
common  law  and  equity  actions,  and  the  practice  relating 
thereto,  have  been  abolished  ;  and  one  court  of  general 
common  law  and  equity  jurisdiction  has  been  substituted, 
to  which  jurisdiction  over  all  cases  at  law  and  in  equity 
has  been  given.^ 

This  being  so,  the  question  whether  the  jurisdiction  is 
at  law  or  in  equity  has  ceased  to  be  of  much  practical  im- 
portance in  most  of  the  states  as  a  mere  question  of  juris- 
diction in  the  particular  court.  But  as  affecting  the 
question  of  the  remedy  to  be  administered,  the  distinction 
between  common  law  and  equity  causes  of  action  can 
never  cease  to  be  important.^  However,  it  is  believed  that 
a  general  statement  of  the  kind  and  character  of  the  two 
classes  of  jurisdiction  is  all  that  is  necessary  in  a  work  of 
this  kind.  The  subject  has  received  attention  in  the 
chapter  on  courts,^  and  in  the  section  on  the  different 
kinds  of  jurisdiction.^ 

'  Ante,  sec.  18,  p.  74 ;  Lamaster  v.  Scofield,  5  Neb.  148 ;  Town  of  Venice 
V.  Woodruff,  62  N.  Y.  462. 

2  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v.  Pennsylvania  Co.,  54  Fed.  Rep.  730, 
746;  United  States  v.  Workingmen's  Amalg.  Council,  54  Fed.  Rep.  994. 

^  Ante,  sees.  2,  3,  4.  ♦  Ante,  sec.  8,  p.  22 ;  sees.  9,  18. 

°  Ante,  sees.  2,  3,  4. 

®  Ante,  sec.  9;  see  also  ante,  sec.  18;  Foulks  Ac.  in  Sup.  Ct.  27-38. 


GENERALLY.  423 

The  sections  cited  would  seem  to  show,  sufficiently  for 
our  present  purpose,  the  general  nature  of  the  two  classes 
of  jurisdiction.' 

In  some  of  the  states  the  common  law,  or  parts  of  the 
common  law,  as  the  case  may  be,  has  been  expressly 
adopted  as  the  law  of  such  states.  And  if  this  has  not 
been  done  it  is  sometimes  held  that  if  the  question  arises 
in  another  state  it  will  be  presumed,  in  the  absence  of 
proof  to  the  contrary,  that  the  common  law  prevails  in  a 
sister  state.^  But,  generally,  it  is  held  that,  in  the  absence 
of  proof,  the  law  of  a  sister  state  will  be  presumed  to  be 
the  same  as  the  law  of  the  state  in  which  the  question 
arises  whether  it  be  the  common  law  or  not.^ 

"Where  a  statute  and  the  common  law  conflict,  the  stat- 
ute must  prevail,  unless  there  is  some  constitutional  pro- 
vision to  prevent  it.  But  if  general  common  law  and 
equity  jurisdiction  is  vested  in  a  court  by  the  constitution 
such  jurisdiction  can  not  be  taken  away  or  limited  by 
statute.*  And  this  mode  of  conferring  jurisdiction  upon 
courts  of  general  jurisdiction  is  quite  common.^  But  un- 
less the  right  has  been  preserved  by  some  constitutional 
provision  the  common  law  may  be  changed  at  will  by 
statute,  and  jurisdiction  given  by  a  general  reference  to 
the  common  law  and  equity  may  be  taken  away  or 
changed  at  any  time.^ 

^  But  see  on  this  point  the  following  sections  on  the  different  common 
law  and  equity  writs  :  Story's  Eq.  PI.,  sec.  472 ;  Town  of  Venice  v.  Wood- 
ruff, 62  N.  Y.  462. 

2  Norris  v.  Harris,  15  Cal.  226. 

^  Marsters  v.  Lash,  61  Cal.  622;  Monroe  v.  Douglass,  5  N.  Y.  447; 
Hynes  v.  McDermott,  82  N.  Y.  41,  47. 

*•  Ante,  sec.  24,  p.  146 ;  post,  sec.  66 ;  People  r.  Nichols,  79  X.  Y.  582. 

^  Ante,  sec.  10. 

«  Munn  V.  Illinois,  94  U.  S.  113,  134 ;  Wellman  r.  Chicago  &  G.  T.  Ey. 
Co.,  83  Mich.  592;  47  N.  W.  Rep.  489,  495. 

"A  person  has  no  property,  no  vested  interest,  in  any  rule  of  the 
common  law.  That  is  only  one  of  the  forms  of  municipal  law,  and  is 
no  more  sacred  than  any  other.  Rights  of  projierty  which  have  been 
created  by  the  common  law  can  not  be  taken  away  without  due  process; 
but  the  law  itself,  as  a  rule  of  conduct,  may  be  changed  at  the  will,  or 
•even  at  the  whim,  of  the  legislature,  unless  prevented  by  constitutional 


424      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

It  will  be  presumed,  however,  that  it  was  the  intention 
of  the  legislature  that  the  common  law  should  prevail, 
unless  it  has  expressly  provided  to  the  contrary.' 

The  federal  courts  have  no  common  law  jurisdiction 
except  as  the  same  is  conferred  upon  them  by  the  consti- 
tution or  acts  of  congress.^ 

limitations.  Indeed,  the  great  office  of  statutes  is  to  remedy  defects  in 
the  common  law  as  they  are  developed,  and  to  adapt  it  to  the  changes 
of  time  and  circumstances."     Munn  v.  Illinois,  94  U.  S.  113,  134. 

1  Clark  V.  Clark,  17  Nev.  124;  28  Pac.  Rep.  238. 

^Ante,  sec.  10;  In  re  Barry,  42  Fed.  Rep.  113;  Ex  parte  Burrus,  13(3 
U.  S.  586;  10  Sup.  Ct.  Rep.  850;  In  re  Booth,  3  Wis.  157. 

"This  reasoning,  however,  may  not  be  supposed  to  meet  fully  the 
case  presented  by  the  petitioner;  for  although,  in  the  abstract,  there 
may  be  no  prerogative  authority  m  the  head  of  the  United  States  gov- 
ernment, yet  the  argument  would  maintain  that  its  courts  of  justice,  as 
organized,  may  possess  all  the  powers  exercised  by  superior  courts  at 
common  law,  and  the  issuing  and  acting  upon  writs  of  habeas  corpus  ad 
subjiciendum  become  thereby  a  branch  of  jurisdiction  necessarily  inci- 
dent to  the  constitution  of  such  courts.  This  hypothesis  overlooks  the 
peculiar  foundation  of  the  United  States  judiciary,  and  the  allotment  of 
its  functions  in  respect  to  the  powers  of  the  states.  The  federal  govern- 
ment came  into  force  co-ordinately  with,  or  as  the  concomitant  of,  state 
governments  at  the  time  existing,  and  in  the  full  exercise  of  legislative, 
executive,  and  judicial  sovereignty.  These  sovereignties  are  left  entire, 
under  the  action  of  the  general  government,  except  in  so  far  only  as  the 
powers  are  transferred  to  the  federal  head  by  the  constitution,  or  are 
by  that  prohibited  to  the  states,  or,  in  some  few  instances,  are  allotted 
to  be  exercised  concurrently  by  the  two  governments.  The  United 
States  judiciary  is  constituted  and  put  in  action  in  the  several  states,  in 
subordination  to  this  fundamental  principle  of  the  Union,  and  empow- 
ered to  exercise  only  such  peculiar  and  special  supremacy,  and  not  one 
in  its  absolute  sense.  To  render  this  connection  of  the  United  States 
judiciary  with  that  of  the  states  more  intimate  and  entire,  and  to  take 
away  all  implication  that  it  was  a  paramount  power,  acting  irrespective 
of  state  laws,  or  that  it  possessed,  or  could  exercise,  any  inherent  juris- 
diction countervailing  those  laws,  the  act  of  congress  organizing  the 
courts  establishes  it  as  an  element  in  their  procedure  that  the  laws  of 
the  state  where  the  court  sits  shall  be  its  rule  of  decision  in  common 
law  cases.  It  necessarily  results,  as  a  consequence  of  this  special  char- 
acter of  the  United  States  judiciary,  that  it  can  possess  no  powers  other 
than  those  specifically  conferred  by  the  constitution  or  laws  of  the 
Union,  and  such  incidents  thereto  as  are  necessary  to  the  proper  exe- 
cution of  its  jurisdiction.  All  other  judicial  powers  necessary  to  the 
complement  of  supreme  authority  remain  with,  and  are  exercised  by, 
the  states.    This  doctrine  is  suificientlv  indicated  iu  the  decision  of  the 


GENERALLY.  425 

Frequently  a  cause  of  action  is  given  by  statute  which 
could  not  have  been  maintained  either  at  common  law  or 
in  equity.     In  such  cases  the  jurisdiction  is  regarded  as 

Supreme  Court  made  in  this  case  at  the  last  term,  and  it  has  heen  inva- 
riably recognized  from  the  earliest  adjudications  of  the  court.  Chisholm 
V.  Georgia,  2  Dall.  432,  435 ;  Ex  parte  Bollman,  4  Cranch,  75 ;  Ex  parte" 
Watkins,  3  Pet.  201 ;  Kendall  v.  U.  S.,  12  Pet.  524.  The  jurisdiction  of 
the  United  States  courts  depends  exclusively  on  the  constitution  and 
laws  of  the  United  States,  and  they  can  neither  in  criminal  nor  civil 
cases  fesort  to  the  common  law  as  a  source  of  jurisdiction.  U.  S.  v. 
Hudson,  7  Cranch,  32;  U.  S.  v.  Coolidge,  1  Wheat.  415;  Chisholm  v. 
Georgia,  2  Dall.  432;  Ex  parte  Bollman,  4  Cranch,  75;  Town  of  Pawlett 
V.  Clark,  9  Cranch,  333;  Ex  parte  Eandolph,  2  Brock.  477;  Craig  v.  Mis- 
souri, 4  Pet.  444 ;  Wheaton  v.  Peters,  8  Pet.  658 ;  The  Orleans  v.  Phoebus, 
11  Pet.  175;  Kendall  v.  U.  S.,  12  Pet.  524. 

"  It  is  now  argued  that  this  principle  is  limited  to  the  Supreme  Court, 
but  that,  in  respect  to  the  circuit  courts,  they  have  a  common  law  juris- 
diction incident  to  their  constitution,  inasmuch  as  judicial  sovereignty 
resides  in  them,  rendering  the  range  of  their  original  jurisdiction  co- 
extensive with  the  subjects  of  litigation  arising  under  the  constitution 
and  laws  of  the  United  States,  and  because  all  remedies  not  otherwise 
provided  are,  in  the  exercise  of  that  judicial  sovereignty,  to  be  in  con- 
formity to  the  common  law.  Although  the  speculations  of  our  most 
eminent  jurists  may  countenance  this  argument  (Dup.  Jur.  85;  1  Kent, 
Comm.  341),  yet  it  has  not  received  the  sanction  of  the  United  States 
courts.  Chisholm  v.  Georgia,  2  Dall.  435 ;  Kendall  v.  U.  S.  12  Pet.  616, 
per  curiam,  and  626,  Chief  Justice  Taney;  Ex  parte  Bollman,  4  Cranch, 
75;  Chief  Justice  Marshall,  Ex  parte  Randolph,  2  Brock.  477 ;  Lorman 
V.  Clarke,  2  McLean,  569.  The  distinction  established  by  the  cases  is 
clear  and  practical,  and  embraces  all  United  States  courts  alike ;  and  is, 
in  effect,  that  those  courts  derive  no  jurisdiction  from  the  common  law, 
but  that,  in  those  cases  in  which  jurisdiction  is  appointed  by  statute, 
and  attaches,  the  remedies  in  these  courts  are  to  be  according  to  the 
principles  of  the  common  law.  Bains  v.  The  James  and  Catherine,  1 
Baldw.  558;  Robinson  v.  Campbell,  3  Wheat.  223;  U.  S.  v.  Hudson,  7 
Cranch,  32;  Ex  parte  Kearney,  7  Wheat.  38;  Anderson  v.  Dunn,  6 
Wheat.  204;  Ex  parte  Randolph,  2  Brock.  477.  It  is  not,  accordingly, 
conclusive  of  their  right  to  take  cognizance  of  the  subject-matter,  to 
show  that  the  parties  connected  therewith  are  competent  to  sue  or  be 
sued  in  the  United  States  courts,  and  that  there  is  a  perfect  right  of 
action  or  defense  thereupon  supplied  such  parties  at  common  law.  The 
evidence  must  go  further,  and  prove  that  the  particular  subject-matter 
is  one  over  which  the  courts  are  by  act  of  congress  appointed  to  act,  or 
that  the  question  has  relation  to  the  remedy  alone,  and  not  the  juris- 
diction of  the  court.  U.  S.  v.  Bevans,  3  Wheat.  389;  I\IcCulloch  v. 
Maryland,  4  Wheat.  407;  Rhode  Island  v.  Massachusetts,  12  Pet.  721." 
In  re  Barry,  42  Fed.  Rep.  113,  120. 


426     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

exceptional,  and  the  party  asserting  a  right  under  the 
statute  is  required  to  bring  himself  within  its  provisions 
by  the  allegations  of  his  complaint.' 

The  courts  speak  of  this  rule  as  if  it  were  exceptional. 
It  is  presumed,  however,  that  if  the  cause  of  action  at- 
tempted to  be  alleged  is  one  that  could  be  enforced  in  a 
common  law  or  chancery  court,  the  allegations  of  the 
complaint,  declaration,  or  bill,  must  bring  the  case  within 
some  rule  of  law  or  equity,  that  would  entitle  the  com- 
plainant to  relief.  And  why  any  different  or  more 
stringent  rule  should  prevail  where  the  cause  of  action  is 
purely  statutory,  no  satisfactory  reason  has  ever  been 
given,  and  probably  never  will  be. 

It  will  be  seen  from  these  general  observations  that 
these  difi'erent  classes  of  jurisdiction  have  so  far  been 
merged  in  each  other,  and  changed  and  modified  by  statu- 
tory enactments  as  to  render  a  separate  consideration  of 
each  not  only  unnecessary  but  inadvisable. 

It  has  been  thought  best  to  consider,  rather,  the  present 
law  of  jurisdiction,  as  aifecting  the  different  classes  of 
subjects,  and  the  different  writs  that  may  be  issued,  as  the 
same  exist  at  the  present  time  whether  by  force  of  the 
common  law,  equity,  or  constitutional  and  statutory  pro- 
visions, or  any  or  all  of  them.  And  this  will  be  done,  as 
far  as  it  is  thought  to  be  necessary  and  advisable,  in  the 
following  sections  of  this  chapter. 

The  jurisdiction  of  the  federal  courts  will  be  considered 
with  that  of  the  state  courts  under  each  subject. 

66.  Constitutional  jurisdiction.  In  most  of  the  states 
in  this  country  the  jurisdiction  of  courts  of  general  and 
superior  jurisdiction  is  fixed  and  defined  by  the  constitu- 
tion. This  is  usually  done  by  conferring  upon  such  courts, 
in  general  terms,  jurisdiction  in  all  cases  at  law  and  in 
equity.  But  not  infrequently  the  extent  of  jurisdiction  is 
specifically  defined  and  limited.^ 

1  Boys  V.  Simmons,  72  Ind.  593. 
^  Ante,  sec.  65. 


CONSTITUTIONAL  JURISDICTION.  427 

There  is  nothing  peculiar  about  the  jurisdiction  thus 
conferred,  as  distinguished  from  that  conferred  by  legisla- 
tive enactment,  except  that  it  can  not  be  taken  awaj', 
changed,  or  modified  by  statute.^  Nor  where  jurisdiction 
is  limited  in  terms  to  specific  cases  or  classes  of  cases  by 
the  constitution  can  such  jurisdiction  be  extended  to  other 
cases  by  statute.^  But  where  the  judicial  power  of  the 
state  is  vested  by  the  constitution  in  certain  designated 
courts  "  and  such  other  courts  as  may  be  established  by 
law,"  the  jurisdiction  is  not  exclusive  in  the  courts  named, 
and  other  courts  may  be  created  and  given  like  jurisdic- 
tion with  those  named  in  the  constitution. 

But  it  has  been  held  that  under  such  a  constitutional 
provision  no  court  can  be  created  that  is  not  subject  to  the 
"superintending  control "  of  the  Supreme  Court  created 
b}'  the  constitution.^ 

What  is  meant  in  constitutional  provisions  granting 
jurisdiction  in  "cases  at  law,"  or  "  common  law  jurisdic- 
tion," has  been  the  subject  of  some  contention.  The  use 
of  the  phrase  has  been  given  its  broadest  meaning  by  the 
courts,  and  held  to  include  not  only  such  of  the  common 
law  actions  as  were  designated  and  known  by  name  as 
such,  but  also  all  cases,  legal  in  their  nature,  as  contradis- 
tinguished from  equity  and  admiralty  cases,  and  such  as 
are  within  the  cognizance  of  military  courts  or  courts 
martial,  and  including  criminal  cases.* 

'  Ante,  sec.  24;  Wilson  v.  Roach,  4  Cal.  362;  People  i'.  Nichols,  79  N.  Y. 
582;  Hutkoff  v.  Demorest,  103  N.  Y.  377 ;  8  N.  E.  Rep.  899 ;  In  re  Booth, 
3  Wis.  157;  Chumasero  v.  Potts,  2  Mont.  242;  Appeal  of  Houghton,  42 
Cal.  35 ;  State  v.  Butt,  25  Fla.  258 ;  5  Sou.  Rep.  597.  But  see  Anderson 
v.  Commonwealh,  3  S.  W.  Rep.  127;  Stapleton  v.  Commonwealth,  3  S. 
W.  Rep.  793. 

'  Western  Union  Tel.  Co.  v.  Taylor,  84  Ga.  408;  11  S.  E.  Rep.  396. 

=*  People  V.  Richmond,  26  Pac  Rep.  929. 

*  Ante,  sec.  65 ;  Parsons  v.  Bedford,  3  Pet.  433. 

"All  wrongs  are  legal  injuries.  Common  law  courts,  then,  have  for 
one  of  their  objects  the  redress  of  public  wrongs,  or,  in  other  words, 
the  punishment  of  crimes.  A  court  having  common  law  jurisdiction 
has  the  same  jurisdiction  as  common  law  courts.  The  only  meaning 
that  can  be  derived  from  the  phrase  'common  law  jurisdiction,' is  the 
right  to  hear  and  determine  cases  at  common  law.     This  is  what  com- 


428      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

But  there  are  certain  cases  or  proceedings  created  by 
statute  which  have,  unfortunately,  and  it  is  believed  erro- 
neously, been  held  to  belong  to  none  of  these  general  and 

mon  law  courts  were  instituted  for.  It  is  believed  that  the  language 
used  in  our  Organic  Act,  '  common  law  jurisdiction,' was  intended  to 
vest  in  the  district  courts  and  Supreme  Court  of  the  territory  the  same 
jurisdiction  as  was  possessed  by  all  the  superior  common  law  courts  of 
England.  The  judicial  system  that  prevailed  in  most  of  the  states  at 
the  time  the  Organic  Act  was  enacted  by  congress  (of  which  the  one  for 
this  territory  is  a  copy),  included  one  court  having  jurisdiction  of  all 
common  law  causes,  civil  and  criminal,  and  that  the  intention  of  con- 
gress at  that  time,  and  when  our  Organic  Act  was  passed,  was  to  pro- 
vide for  a  judicial  system  similar  to  that  which  had  prevailed  in  most  of 
the  states,  and  which  the  great  mass  of  the  citizens  of  the  United  States 
were  familiar  with.  Even  while  the  oldest  states  were  colonies  of  Great 
Britain,  they  never  had  a  judicial  system  that  coincided  with  that  of 
the  mother  country.  Generally,  with  them,  one  court  had  all  of  the 
original  jurisdiction  that  was  possessed  by  the  several  superior  courts 
of  common  law  in  England,  and  this  was  said  to  possess  common  law 
jurisdiction.  See  Graham  on  Jurisdiction,  139,  140,  as  to  the  jurisdic- 
tion of  the  Supreme  Court  of  New  York  when  that  state  was  a  colony. 
And  here  we  have  the  origin  of  this  phrase.  A  court  that  had  common 
law  jurisdiction  had  the  right  to  hear  and  determine  every  case  that 
did  not  fall  within  the  classes  known  as  suits  in  equity  or  admiralty,  or 
matters  of  which  a  court-martial  took  cognizance.  It  had  the  same 
jurisdiction  as  the  combined  jurisdictions  of  the  several  superior  com- 
mon law  courts  of  England.  When  a  new  legal  right  was  created,  or  a 
legal  wrong  proscribed,  it  was  not  necessary  to  pass  a  statute  giving  any 
court  jurisdiction  of  the  same,  for  a  court  having  a  common  law  juris- 
diction had  so  general  and  enlarged  a  jurisdiction  of  all  legal  remedies, 
that  it  could  take  cognizance  of  any  action  involving  the  determination 
of  the  same.  In  the  case  of  Parsons  v.  Bedford,  3  Pet.  433,  it  was  held 
that  suits  at  common  law,  as  specified  in  the  seventh  amendment  to  the 
constitution  of  the  United  States,  included  all  suits  not  of  equity  or  ad- 
miralty jurisdiction,  and  was  not  confined  to  cases  which  were  known 
to  the  old  and  settled  proceedings  at  the  common  law.  Suits  a  tcom- 
mon  law  signify  nothing  more  than  cases  at  law.  This  is  undoubtedly 
the  proper  construction  of  the  phrase  '  common  law,'  as  used  in  our 
Organic  Act.  Actions  at  common  law  signified  formerly  every  case  not 
of  equity  or  admiralty  jurisdiction,  or  cases  within  the  cognizance  of  a 
court-martial.  Now  cases  at  law  occupy  the  same  position.  They  em- 
brace every  class  of  cases  not  of  one  of  these  jurisdictions.  If  we  take 
the  above  decision  as  a  guide,  cases  at  law  and  cases  at  common  law  are 
convertible  terms,  when  applied  to  the  jurisprudence  of  the  United 
States.  Both  are  used  to  designate  a  class  of  cases  that  are  not  known 
as  equity  or  admiralty  suits,  or  matters  within  the  cognizance  of  courts- 
martial.     Once  this  class  of  cases  was  known  as  cases  at  common  law> 


CONSTITUTIONAL  JURISDICTION.  429 

well  known  heads  of  jurisdiction,  or  to  be  included  in 
"  cases  at  law,"  "  suits  in  equity,"  or  the  "  civil  action  "  of 
the  codes.  They  have  been,  by  judicial  decisions  in  some 
of  the  states,  put  into  a  class  by  themselves,  and  denomi- 
nated "  special  cases  "  or  "  special  proceedings."  ^  While 
such  a  distinction  has  no  doubt  been  countenanced  by  the 
language  of  constitutional  and  statutory  provisions  in 
some  of  the  states,  it  is  one  that  does  not  really  exist,  and 
its  recognition  has  led  to  much  unnecessary  confusion. 
In  the  nature  of  things,  a  cause  of  action  falls  within  one 
or  the  other  of  the  well  defined  classes  of  jurisdiction 
above  mentioned,  and  the  attempt  to  create  a  new  class  of 
actions  or  proceedings  governed  by  different  rules  affect- 
ing jurisdiction  and  procedure  must  be  regarded  as  a  mis- 
take. The  civil  action  of  the  code  should  be  held  to 
include  every  judicial  proceeding  the  object  of  which  is 
to  assert  a  civil  right  or  obtain  a  civil  remedy.^ 

now  cases  at  law.  Whenever,  then,  a  case  is  known  as  one  at  law,  or  at 
common  law,  any  court  whose  jurisdiction  is  described  by  the  language, 
'law  or  common  law,'  can  take  cognizance  of  it.  A  criminal  action  is 
one  at  law.  It  is  a  public  wrong  which  is  redressed  by  an  action  in  the 
name  of  the  people  in  their  collective  or  aggregate  capacity.  A  private 
■wrong  is  redressed  in  the  name  of  the  party  injured.  An  indictment 
with  us  is  nothing  but  a  pleading  on  the  part  of  the  territory.  From  a 
review  of  the  common  law  writers,  it  will  be  seen  that  a  criminal  action 
is  always  classed  as  one  at  law.  Chitty's  Blackstone,  bk.  3,  pp.  1,  2; 
Id.,  bk.  4,  p.  4.  '  For  pleas  or  suits  are  regularly  divided  into  two  sorts, 
pleas  of  the  Crown,  which  comprehend  all  crimes  and  misdemeanors, 
wherein  the  king,  on  behalf  of  the  public,  is  the  plaintiff;  and  common 
pleas,  which  include  all  civil  actions  depending  between  subject  and 
subject.'  Chitty's  Blackstone,  bk.  3,  p.  40.  Other  authorities  might  be 
cited  to  the  same  point.  An  interpretation  of  this  clause  in  our  Organic 
Act  has  been  made  by  the  Supreme  Court  of  the  United  States  in  the 
case  of  Ferris  v.  Higley,  20  Wall.  375.  In  referring  to  the  language, 
'common  law  jurisdiction,'  which  occurs  in  the  ninth  section  of  the  Or- 
ganic Act  of  Utah  (which  section  is  the  same  as  that  of  our  Organic 
Act),  the  court  says:  'The  common  law  and  chancery  jurisdiction  here 
conferred  on  the  district  and  supreme  courts  is  a  jurisdiction  very  am- 
ple and  very  well  understood.  It  includes  almost  every  matter,  whether 
of  a  civil  or  criminal  cognizance,  which  can  be  litigated  in  a  court  of 
justice.  "     Territory  v.  Flowers,  2  Mont.  531,  533. 

^  Post,  sec.  Q8;  Appeal  of  Houghton,  42  Cal.  35,  56;  Parsons  r.  Tuo- 
lumne Co.,  5  Cal.  43 ;  63  Am.  Dec.  76. 

^  As  to  the  meaning  of  the  terms  "  controversies"  and  "  cases,"  as  used 


430       COMMON  T,AW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

Where  jurisdiction  has  been  given  by  the  constitution, 
but  the  procedure,  or  means  of  calling  for  or  exercising 
such  jurisdiction,   has   not   been  provided   by  the    legis- 

in  the  constitution  of  the  United  States,  see  In  re  Pacific  Ry.  Com.,  32 
Fed.  Rep.  241,  255,  in  wliich  it  was  said  :  "  The  judicial  article  of  the 
constitution  mentions  cases  and  controversies.  The  term  '  controver- 
sies,' if  distinguishable  at  all  from  '  cases,'  is  so  in  that  it  is  less  compre- 
hensive than  the  latter,  and  includes  only  suits  of  a  civil  nature. 
Chisholm  v.  Georgia,  2  Dall.  431,  432;  1  Tuck.  Bl.  Comm.  App.  420,  421. 
By  cases  and  controversies  are  intended  the  claims  of  litigants  brought 
before  the  courts  for  determination  by  such  regular  proceedings  as  are 
established  by  law  or  custom  for  the  protection  or  enforcement  of  rights, 
or  the  prevention,  redress,  or  punishment  of  wrongs.  Whenever  the 
claim  of  a  party  under  the  constitution,  laws,  or  treaties  of  the  United 
States  takes  such  a  form  that  the  judicial  power  is  capable  of  acting 
upon  it,  then  it  has  become  a  case.  The  term  implies  the  existence  of 
present  or  possible  adverse  parties  whose  contentions  are  submitted  to 
the  court  for  adjudication. 

"In  Osborn  v.  U.  S.,  9 'Wheat.  819,  the  Supreme  Court,  speaking  by 
Chief  Justice  Marshall,  after  quoting  the  third  article  of  the  constitution 
declaring  the  extent  of  the  judicial  power  of  the  United  States,  said: 

"  '  This  clause  enables  the  judicial  department  to  receive  jurisdiction 
to  the  full  extent  of  the  constitution,  laws,  and  treaties  of  the  United 
States,  when  any  question  respecting  them  shall  assume  such  a  form 
that  the  judicial  power  is  capable  ot  acting  on  it.  That  power  is  capable 
of  acting  only  when  the  subject  is  submitted  to  it  by  a  party  wJto  asserts  his  rights 
in  tJie  form  prescribed  by  law.  It  then  becomes  a  case,  and  the  constitu- 
tion declares  that  the  judicial  power  shall  extend  to  all  cases  arising 
under  the  constitution,  laws,  and  treaties  of  the  United  States.' 

"In  his  Commentaries  on  the  Constitution,  Mr.  Justice  Story  says: 
*  It  is  clear  that  the  judicial  department  is  authorized  to  exercise  juris- 
diction to  the  full  extent  of  the  constitution,  laws,  and  treaties  of  the 
United  States,  whenever  any  question  respecting  them  shall  assume 
such  a  form  that  the  judicial  power  is  capable  of  acting  upon  it.  Wlwii 
it  has  assumed  such  a  form,  it  then  becomes  a  case;  and  then,  and  not  till  then, 
the  judicial  power  attaches  to  it.  A  case,  then,  in  the  sense  of  this  clause 
of  the  constitution,  arises  when  some  subject  touching  the  constitution, 
laws,  or  treaties  of  the  United  States  is  submitted  to  the  courts  by  a 
party  who  asserts  his  rights  in  the  form  prescribed  by  law.' 

"  And  Mr.  Justice  Story  refers  in  a  note  to  the  speech  of  Marshall  on 
the  case  of  Robbins,  in  the  house  of  representatives  before  he  became 
chief  justice,  which  contains  a  clear  statement  of  the  conditions  upon 
which  the  judicial  power  of  the  United  States  can  be  exercised.  His 
language  was : 

"  '  By  extending  the  judicial  power  to  all  cases  in  law  and  equity,  the 
constitution  has  never  been  understood  to  confer  on  that  department 
any  political  power  whatever.     To  come  within  this  description,  a  ques- 


PROBATE   JURISDICTION.  431 

lature,  the  court  may  provide  for  such  procedure  by  its 
own  rules.' 

Where  power  is  given  by  the  constitution  to  issue  cer- 
tain writs,  the  office  of  which  is  well  defined  at  common 
law,  the  legislature  can  not  change  the  objects  for  which 
such  writs  may  be  issued,  and  thereby  change  the  consti-^ 
tutional  jurisdiction  of  the  court.^ 

Jurisdiction  conferred  by  the  constitution  is  not  exclu- 
sive, unless  made  so  in  express  terms,  and,  therefore,  while 
the  jurisdiction  thus  given  can  not  be  taken  away  by  the 
legislature,  it  may  be  conferred  by  statute  upon  another 
court  concurrently  with  the  one  exercising  constitutional 
jurisdiction.^ 

67.  Probate  jurisdiction. — Formerly,  jurisdiction  of 
matters  growing  out  of  the  administration  of  estates  of 
deceased  persons  in  England  belonged  to  the  county 
courts,  then  to  the  ecclesiastical  courts,  and  courts  of 
chancery,  and  later  to  the  probate  courts,*  strictly  probate 
jurisdiction  being  vested  in  the  county  courts,  and  later 
in  the  ecclesiastical  courts.^  But  the  jurisdiction  of  the 
ecclesiastical  courts  was  confined  to  wills  of  personal  prop- 
erty.^ And  now  the  entire  jurisdiction  growing  out  of  the 
settlement  of  estates  is  vested  in  the  supreme  court,  the 
probate  court  being  merged  in  that  court  under  the  jDro- 
bate,  divorce,  and  admiralty  division.^ 

tion  must  assume  a  legal  form  for  forensic  litigation  and  judicial  decis- 
ion. There  must  be  parties  to  come  into  court,  who  can  be  reached  by 
its  process,  and  bound  by  its  power;  whose  rights  admit  of  ultimate  de- 
cision by  a  tribunal  to  which  they  are  bound  to  submit.'  " 

'  Post,  sec.  88;  People  v.  Jordan,  65  Cal.  644;  4  Pac.  Rep.  683. 

^  Post,  sec.  81 ;  Camron  r.  Kenfield,  57  Cal.  550. 

'  Ante,  sec.  24. 

*  Perris  r.  Higley,  20  Wall.  375  ;  Green  r.  Creighion,  10  S.  &  M.  (Miss.) 
159;  48  Am.  Dec.  742,  749,  note;  Sneed  v.  Ewing,  5  J.  J.  Mar.  (Ky.)  460; 
22  Am.  Dec.  41. 

5  Townsend  v.  Townsend,  4  Cold.  (Tenn.)  70;  94  Am.  Dec.  184;  Apper- 
8on  V.  Cottrell,  3  Porter  (Ala.),  51  ;  29  Am.  Dec.  239. 

*  Buchanan  v.  Matlock,  8  Humph.  (Tenn. )  390 ;  47  Am.  Dec.  622 ;  Sneed 
V.  Ewing,  5  J.  J.  Mar.  (  Ky. )  460  ;  22  Am.  Dec.  41. 

'  Ante,  sec.  3 ;  Foulke's  Ac.  in  Sup.  Ct.  18,  38. 


432       COMMOX  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

In  this  country,  probate  jurisdiction  is  vested  by  law  in 
difierent  courts  in  the  dilFerent  states.  In  some,  probate 
courts  are  still  maintained;  in  some,  this  jurisdiction  is 
vested  in  county  courts;  in  others,  in  district  courts;  in 
others,  in  surrogate  courts;  in  others,  in  common  pleas 
courts;  in  some,  the  courts  exercising  general  jurisdiction 
in  common  law  and  equity  cases  are  vested  with  the 
powers  of  probate  courts,  and  in  some  of  the  states  the 
jurisdiction  is  still  retained  by  the  court  of  chancery  in 
part.^  But  at  the  present  day  the  jurisdiction  of  courts, 
and  the  procedure  in  probate  matters,  are  almost  entirely 
regulated  and  controlled  by  constitutional  and  statutory 
provisions,  and  do  not  depend  upon  the  modes  of  proceed- 
ing in  the  ecclesiastical  courts  of  England.  And  in  most 
of  the  states,  the  jurisdiction  given  to  probate  courts  is 
much  more  broad  and  ample  than  the  powers  of  the  eccle- 
siastical courts.^     And  where  probate  jurisdiction  is  vested 

^  Stimson  Am.  Stat.  Law,  p.  119,  sec.  556  ;  Perris  v.  Higley,  20  Wall.  375 ; 
In  re  Burton,  93  Cal.  459 ;  29  Pac.  Rep.  36 ;  Pennie  v.  Roach,  94  Cal. 
515;  29  Pac.  Rep.  956;  30  Pac.  Rep.  106;  Green  v.  Creighton,  10  S.  &  M. 
(Miss.)  159;  48  Am.  Dec.  742,  744,  note;  Apperson  v.  Cottrell,  3  Porter 
(Ala.),  51 ;  29  Am.  Dec.  239. 

"  The  jurisdiction  over  the  probate  of  wills  and  granting  administra- 
tions is  peculiar.  It  was  derived  from  the  civil  law  through  the  ecclesi- 
astical courts  of  England,  and  was  granted  by  the  province  charter  to 
the  governor  and  council,  who  appointed  judges  of  probate  in  the  dif- 
ferent counties  as  their  delegates,  from  whom  an  appeal  lay  to  them ; 
and  this  appellate  power  was  continued  in  the  governor  and  council 
after  the  establishment  of  the  state  constitution  until  the  end  of  the 
Revolution,  when  it  was  transferred  to  this  court,  still,  however,  keep- 
ing the  probate  jurisdiction  distinct  from  those  of  common  law  and 
equity :  Anc.  Chart.  32 ;  Governor  Pownall's  Message  to  his  Council  in 
1700,  Quincy,  573;  Constitution  of  Massachusetts,  c.  3,  sec.  5;  Stats. 
1783,  c.  46;  Peters  v.  Peters,  8  Cush.  540-542.  The  jurisdiction  of  courts 
of  probate  in  Massachusetts,  differing  in  this  respect  from  those  of  Eng- 
land and  of  some  other  states,  includes  wills  of  real  estate  as  well  as  of 
personal  property :  Anc.  Chart.  32 ;  Laughton  v.  Atkins,  1  Pick.  549,  and 
cases  cited ;  R.  S.,  c.  62,  sec.  32,  and  commissioners'  note  ;  Gen.  Stats.,  c. 
92,  sec.  38."     Waters  v.  Stickney,  12  Allen,  1 ;  90  Am.  Dec.  122. 

'^  "  We  may  admit  the  correctness  of  this  doctrine  as  applied  to  a  sim- 
ilar proceeding  in  the  ecclesiastical  courts  of  England,  whose  powers 
and  jurisdictions  are  restricted  to  much  narrower  limits  than  the  au- 


i 


PROBATE    JURISDICTION.  433 

in  courts  of  general  jurisdiction,  it  is  usually  held  that 
proceedings  in  probate  must  be  treated  as  distinct  from 
its  law  and  equity  jurisdiction,  and  as  if  it  were  a  sepa- 
rate and  distinct  court  of  probate.^  And  in  many  of  the 
states,  the  jurisdiction  given  to  probate  courts  is  made 
exclusive.' 

In  almost  if  not  quite  all  of  the  states,  other  than  pro- 
bate jurisdiction  is  granted  to  courts  exercising  the  latter, 
so  that  it  may  be  said  that  there  is  no  court  in  any  of  the 
states  exercising  probate  jurisdiction  only,  and  therefore 
no  probate  courts,  except  in  name,  really  exist.  This  is 
of  little  consequence,  however,  as  respects  the  question  of 
jurisdiction,  for  the  reason  that  the  question  is  the  same, 
as  to  the  powers  of  the  court,  respecting  its  probate  juris- 
diction, whether  it  is  in  fact  a  probate  court  or  some 
other  court  exercising  probate  jurisdiction. 

The  standing  of  such  courts,  whether  courts  of  special 
and  inferior  or  of  general  and  superior  jurisdiction,  as  re- 
spects, particularly,  the  presumptions  that  will  or  will  not 
be  indulged  in  favor  of  their  jurisdiction,  has  been  a  mat- 
ter of  no  little  controversy.^ 

It  is  generally  held  that  they  are  courts  of  limited  juris- 

thority  and  iurisdiction  of  the  courts  of  probates  in  this  state.  In  the 
absence  of  statutory  directions,  it  is  found  convenient  to  adopt  the 
modes  of  proceeding  observed  by  those  courts.  But  in  questions  con- 
cerning the  jurisdiction  of  the  courts  of  probates,  we  do  not  refer  to  the 
ecclesiastical  courts  of  England  as  an  authoritative  standard.  The  con- 
stitution of  the  state  is  the  common  source  of  the  authority  and  powers 
of  all  our  courts;  and  hence,  in  all  questions  in  regard  to  the  extent  of 
their  respective  jurisdictions,  must  determine  the  controversy.  The 
jurisdiction  of  the  courts  of  probates  over  the  estates  of  decedents  was 
intended  by  the  constitution  to  be  full  and  ample,  and  has  by  this  court 
been  uniformly  held  to  be,  in  the  main,  exclusive."  McWillie  v.  Van 
Vacter,  35  Miss.  428 ;  72  Am.  Dec.  127,  128. 

1  Lucich  V.  Medin,  3  Nev.  93 ;  93  Am.  Dec.  376. 

2  McWillie  v.  Van  Vacter,  35  Miss.  428;  72  Am.  Dec.  127;  Linsenbig- 
ler  V.  Gourley,  56  Pa.  St.  166 ;  94  Am.  Dec.  51 ;  Townsend  v.  Townsend, 
4  Cold.  (Tenn.)  70;  94  Am.  Dec.  184;  Gaines  v.  Smiley,  7  S.  &  M.  (Miss.) 
53 ;  45  Am.  Dec.  295. 

'  Ante,  sees.  6,  7,  23,  25  ;  Schultz  v.  Schultz,  10  Grattan,  358 ;  60  Am. 
Dec.  335.  353,  note. 
28 


434      COMMON  LAW,  EQUITY,  AND  PTATUTORY  JURISDICTION. 

diction,^  but  that  they  are  not  inferior  courts  within  the 
technical  meaning  of  the  term.^  And  that,  when  acting 
within  their  hniited  sphere,  all  presumptions  in  favor  of 
their  jurisdiction  that  would  apply  to  the  proceedings  of 
courts  of  general  and  superior  jurisdiction  will  be  in- 
dulged.^ 

So    recitals   in    the    record    showing    service  of    notice 
or  other  facts  necessary  to  give  jurisdiction,  can  not  be 

1  Propst  V.  Meadows,  13  111.  157  ;  People  r.  Gray,  72  111.  343;  People's 
Sav.  Bank  v.  Wilcox,  15  E.  I.  258 ;  3  Atl.  Rep.  211  ;  Bostwick  v.  Skinner, 
80  111.  147;  Masters  i'.  Brinker,  87  Ky.  1;  7  S.  W.  Rep.  158;  People  v. 
Loomis,  9G  111.  377  ;  Snyder's  Appeal,  36  Pa.  St.  166  ;  78  Am.  Dec.  372; 
Walters  v.  Stickney,  12  Allen,  1  ;  90  Am.  Dec.  122;  Schultz  v.  Schultz,  10 
Grattan,  358;  60  Am.  Dec.  335,  353;  Redmond  v.  Collins,  4  Dev.  (N. 
Car.),  430;  27  Am.  Dec.  208. 

2  Davis  V.  Hudson,  29  Minn.  27;  11  N.  W.  Rep.  136;  Camden  v.  Plain, 
91  Mo.  117;  4  S.  W.  Rep.  86;  People  v.  Gray,  72  111.  343;  Propst  v. 
Meadows,  13  111.  157,  169;  Sheldon  v.  Newton,  3  Ohio  St.  494,  500;  Bost- 
wick r.  Skinner,  80  111.  147;  People  v.  Cole,  84  111.  327;  Succession  of 
Bellande,  41  La.  Ann.  491 ;  6  Sou.  Rep.  505 ;  Masters  v.  Brinker,  87  Ky.  1 ; 
7  S.  W.  Rep.  158;  Shroyer  v.  Richmond,  16  Ohio  St.  455,  465 ;  Shoemaker 
V.  Brown,  10  Kan.  383;  Townsend  v.  Townsend,  4  Cold.  (Tenn.)  70;  94 
Am.  Dec.  184 ;  Walters  v.  Stickney,  12  Allen,  1 ;  90  Am.  Dec.  122,  136, 
note  ;  Coltart  v.  Allen,  40  Ala.  155;  88  Am.  Dec.  757;  Andrews  v.  Avory, 
14  Grattan,  229;  73  Am.  Dec.  355;  McPherson  v.  CunlifF,  11  Serg.  & 
Raw.  422  ;  14  Am.  Dec.  642,  663. 

^Ante,  sec.  25;  Davis  v.  Hudson,  29  Minn.  27;  11  N.  W.  Rep.  136;  Peo- 
ple V.  Gray,  72  111.  343 ;  Sherwood  v.  Baker,  105  Mo.  472  ;  16  S.  W.  Rep. 
938;  Blair  ^;.  Sennott,  134  111.  78;  24  N.  E.  Rep.  969;  People  v.  Cole, 
84  111.  327;  Rottman  v.  Schmucker,  94  Mo.  139;  7  S.  W.  Rep.  117; 
Shroyer  1'.  Richmond,  16  Ohio  St.  455,  465;  In  re  Burton,  93  Cal.  459;  29 
Pac.  Rep.  36;  Kimball  v.  Fisk,  39  N.  H.  110;  75  Am.  Dec.  213;  Bush  v. 
Lindsey,  24  Ga.  245  ;  71  Am.  Dec.  117. 

"  Whether  the  decision  of  the  county  court  was  right  or  wrong,  can 
not  be  inquired  into  here.  The  ^county  court  is  a  court  of  general  juris- 
diction, of  unlimited  extent,  over  a  particular  class  of  subjects,  and, 
when  acting  within  that  sphere,  its  jurisdiction  is  as  general  as  that  of 
the  circuit  court.  When,  therefore,  it  is  adjudicating  upon  the  admin- 
istration of  estates,  over  which  it  has  a  general  jurisdiction,  as  liberal 
intendments  will  be  granted  in  its  favor  as  would  be  extended  to  the 
proceedings  of  the  circuit  court,  and  it  is  not  necessary  that  all  the  facts 
and  circumstances  which  justify  its  action  shall  affirmatively  appear 
upon  the  face  of  its  proceedings.  Propst  r.  Meadows,  13  111.  108  ;  Mitch- 
ell V.  Mayo,  16  lb.  83."     People  v.  Gray,  72  111.  343,  347. 


PROBATE    JURISDICTION.  435 

contradicted  by  parol  in  a  collateral  proceeding.^  And 
such  a  court,  although  one  created  by  statute,  and  exer- 
cising purely  statutory  powers,  would,  if  the  act  to  be  done 
were  within  the  general  jurisdiction  of  a  common-law  or 
chancery  court,  be  treated,  under  this  rule,  as  a  court  of 
general  jurisdiction. 

The  rule  itself  is  not  to  be  commended,  as  it  is  believed 
that  the  distinction  between  common-law,  equity,  and 
statutory  jurisdiction,  thus  maintained,  does  not  exist  in 
reason,  but  is  the  result  of  a  purely  arbitrary  rule.^  And 
the  question  does  not  always  turn  upon  the  character  of 
the  court,  generally,  but  depends  sometimes  upon  the  na- 
ture of  the  act  to  be  done  in  the  particular  case,  it  being 
held  in  some  of  the  cases  that  where  the  court  is  exercis- 
ing a  power  specially  bestowed  upon  it  by  statute,  it  is  a 
court  of  special  and  inferior  jurisdiction  and  its  authority 
to  act  must  affirmatively  appear  on  the  face  of  its  proceed- 
ings.^ 

There  are  not  a  few  cases,  however,  which  hold  that 
they  are  inferior  courts,  and  that  their  jurisdiction  must 
affirmatively  appear,  and  will   not  be  presumed.*      And 

1  Barnett  r.  Wolf,  70  111.  76;  Moore  v.  Earl,  91  Cal.  632;  27  Pac.  Rep. 
1087. 

Tost,  sec.  68. 

^Ante,  sec.  25  ;  Donlin  r.  Hettinger,  57  111.  348 ;  Smith  v.  Westerfield, 
88  Cal.  374;  26  Pac.  Rep.  206;  Root  r.  McFerrin,  37  Miss.  17;  75  Am. 
Dec.  49. 

"  We  must  be  careful  to  separate,  in  our  minds,  the  general  powers  of 
the  probate  court,  as  organized  under  the  constitution,  from  those  of  the 
probate  court  exercising  a  special  authority  not  derived  from  the  con- 
stitution, but  delegated  by  the  legislature  over  a  particular  subject  and 
under  certain  particular  circumstances."  Root  v.  McFerrin,  37  Miss.  17 ; 
75  Am.  Dec.  49,  56. 

*Ante,  sees.  6,  7;  Gilliland  r.  Sellers,  2  Ohio  St.  223;  Detroit,  L.  &  N. 
R.  Co.  r.  Probate  Judge,  63  Mich.  676;  30  N.  W.  Rep.  598;  In  re  Haw- 
ley,  104  N.  Y.  250,  26]  ;  10  N.  E.  Rep.  352;  Smith  v.  Westerfield,  88  Cal. 
374 ;  26  Pac.  Rep.  206 ;  Haynes  v.  Mecks,  10  Cal.  110  ;  70  Am.  Dec.  703  ; 
State  V.  Reigart,  1  Gill,  1 ;  39  Am.  Dec.  628. 

The  California  cases  are  in  a  state  of  hopeless  conflict  on  this  ques- 
tion. In  Smith  v.  Westerfield,  88  Cal.  374,  378 ;  26  Pac.  Rep.  206,  the  su- 
preme court  of  that  state  said  : 

"  Proceedings  for  the  administration  of  the  estates  of  deceased  per- 


436      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

others  holding  that  while  the  jurisdiction  of  the  court  will 
be  presumed  its  proceedings  are  not  conclusive  as  to  the 
jurisdiction  of  the  court.^ 

Under  these  decisions,  it  makes  no  difference  whether 
the  court  exercising  probate  jurisdiction  is  one  of  generul 
or  of  special  jurisdiction.  It  is  deemed  to  belong  to  the 
latter  class  of  courts  as  respects  its  exercise  of  probate 
jurisdiction.^ 

Under  the  rule  that  probate  courts  stand  on  the  same 
footing  as  courts  of  general  jurisdiction,  they  are  held  to 
possess  the  power  to  set  aside  judgments  rendered  by  them 
at  any  time  during  the  term.^ 

sons,  and  for  their  distribution  to  those  who  may  be  entitled  thereto, 
induding  the  determination  of  the  heirs  of  the  decedent,  are  purely 
statutory.  The  superior  court,  while  sitting  as  a  court  of  probate,  has  only 
such  powers  as  are  given  it  by  the  statute,  afnd  such  incidental  powers  as  per- 
tain to  all  courts  for  the  purpose  of  enabling  them  to  exercise  tlie  jurisdiction 
which  is  conferred  upon  them.  Although  it  is  a  court  of  general  jurisdic- 
tion, yet  in  the  exercise  of  tliese  powers  its  jurisdiction  is  limited  and  special, 
and  whenever  its  acts  are  shown  to  have  been  in  excess  of  the  power 
conferred  upon  it,  or  without  the  limits  of  this  special  jurisdiction,  such 
acts  are  nugatory,  and  have  no  binding  effect,  even  upon  those  who 
have  invoked  its  authority  or  submitted  to  its  decision." 

That  is  to  say,  in  plain  terms,  that  the  superior  court  while  exercising 
its  jurisdiction  in  "  probate  matters  "  is  a  court  of  special  and  inferior 
jurisdiction. 

In  the  later  case.  In  re  Burton,  93  Cal.  459,  463;  29  Pac.  Rep.  .36,  the 
same  court  used  this  language : 

'•  The  superior  court,  while  sitting  in  matters  of  probate,  is  the  same  as  it 
is  ivhile  sitting  in  cases  in  equity,  in  cases  at  law,  or  in  special  proceedings ;  and 
when  it  has  jurisdiction  of  the  subject-matter  of  a  case  falling  within 
eitlier  of  these  classes,  it  has  power  to  hear  and  determine,  in  the  mode 
provided  by  law,  all  questions  of  law  and  fact  the  determination  of 
which  is  ancillary  to  a  proper  judgment  in  such  case." 

That  is  to  say,  that  a  superior  court,  while  sitting  in  matters  of  pro- 
bate, is  a  court  of  superior  and  general  jurisdiction.  The  later  case  no 
doubt  states  the  correct  rule  on  the  subject,  but  it  is  a  little  remarkable 
that  the  case  of  Smith  v.  Westerfield,  which  states  a  directly  opposite 
rule,  should  have  been  the  only  case  cited  by  the  court  to  support  it. 
See  also  Pennie  v.  Roach,  94  Cal.  515,  521 ;  29  Pac.  Rep.  956  ;  30  Pac.  Rep. 
106. 

'  Masters  v.  Brinker,  87  Ky.  1 ;  7  S.  W.  Rep.  158. 

=  Donlin  v.  Hettinger,  57  111.  348 ;  Smith  v.  Westerfield.  88  Cal.  374 ;  26 
Pac.  Rep.  206. 

^  Post,  sec.  84;  Rottman  v.  Schmucker,  94  Mo.  139 ;  7  S.  W.  Rep.  117. 


PROBATE    JURISDICTION.  437 

It  must  not  be  overlooked  tliat  mauy  of  the  cases  turn 
upon  the  language  of  constitutional  or  statutory  provisions 
fixing  the  standard  of  such  courts.^  It  is  generally  held 
that  such  courts  may  exercise  such  powers  only  as  are  ex- 
pressly granted  to  them  by  the  statute  and  such  powers  as 
are  necessarily  incidental  thereto.^ 

Some  of  the  cases  go  still  further  and  hold  that  they 
take  no  incidental  powers  or  constructive  authority,  by 
implication,  or  which  is  not  expressly  given  by  statute.^ 
But  an  act  giving  such  incidental  jurisdiction  as  may  be 
necessary  or  proper  in  the  final  settlement  of  an  estate 
can  not  be  held  unconstitutional,  although  such  jurisdic- 
tion could  not  be  conferred  upon  such  court  independently 
of  such  administration  and  the  settlement  thereof.* 

The  authority  to  grant  letters  of  administration  is  some- 
times given  to  the  clerk  of  the  court,  who  may  issue  such 
letters  in  vacation.  But  his  acts  in  granting  such  letters 
are  ministerial  and  not  judicial,  and  are  not  entitled  to  the 
presumptions  accorded  to  judicial  proceedings.^  But 
where  letters  are  granted  by  a  court  having  jurisdiction  to 
grant  them,  it  will  be  conclusively  presumed  that  the 
facts  authorizing  the  granting  of  such  letters,  in  the  par- 
ticular case,  actually  existed.  The  letters  themselves  are 
conclusive  evidence  of  the  fact  that  they  were  properly 
issued,  as  against  a  collateral  attack.®  In  some  cases  the 
letters  are  held  to  be  -prima  facie  evidence.^ 

In  some  of  the  states  there  are  direct  statutory  pro- 

'  Succession  of  Bellande,  41  La.  Ann.  401;  6  Sou.  Rep.  505. 

'  Riggs  V.  Cragg,  89  N.  Y.  479;  Clements'  Appeal,  25  N.  J.  Eq.  508. 

'  In  re  Hawley,  104  N.  Y.  250 ;  10  N.  E.  Rep.  352. 

*  In  re  McPherson,  104  N.  Y.  306;  10  N.  E.  Rep.  685. 

'=  Illinois  Cent.  R.  Co.  v.  Cragin,  71  111.  177. 

«  Kelly  V.  West,  SON.  Y.  139;  Leonard  v.  Columbia  S.  &  Nav.  Co.,  84 
N.  Y.  48;  38  Am.  Rep.  491 ;  O'Connor  v.  Huggins,  113  N.  Y.  511,  517; 
21  N.  E.  Rep.  184  ;  Bolton  v.  Schriever,  135  N.  Y.  65  ;  31  N.  E.  Rep.  1001 ; 
Street  v.  Augusta  Ins.  Co.,  75  Am.  Dec.  722,  note  ;  Abbott  v.  Coburn,  28 
Vt.  663;  67  Am.  Dec.  735. 

'  Renuck  v.  Butterfield,  31  N.  H.  70;  64  Am.  Dec.  316. 


438     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

visions  to  the  effect  that  the  grant  of  letters  shall  be  con- 
clusive.^ 

But  such  statutes  simply  declare  a  rule  of  law,  af- 
fecting the  jurisdiction  of  such  courts  which  is  estab- 
lished by  the  weight  of  authority  without  the  aid  of  any 
statute.^ 

The  doctrine  that  the  decrees  or  orders  of  a  probate 
court  are  conclusive  as  against  a  collateral  attack  extends 
to  other  proceedings  as  well  as  to  the  granting  of  letters. 
But  such  proceedings  are  not  conclusive  when  obtained 
by  fraud,  and  may  be  set  aside.*  And  in  some  of  the 
cases  the  conclusive  effect  of  the  proceedings  of  such 
courts  is  confined  to  final  decrees  or  orders.^  And  this 
must  necessarily  be  so  as  to  many  of  the  proceedings  of 
such  a  court.  Therefore  the  court  itself  may  in  a  final 
accounting  correct  any  mistake  made  in  the  settlement  of 
partial  accounts  made  by  an  administrator,  executor,  or 
guardian.^ 

But  a  decree  settling  a  final  account  and  discharging  an 
executor  or  administrator  is  conclusive,  until  reversed,  in 
the  absence  of  fraud.^ 

And  a  grant  of  letters  can  not  be  avoided  collaterally 

^  Power  r.  Speckman,  126  N.  Y.  354 ;  27  N.  E.  Rep.  474 ;  Bolton  v. 
Schriever,  135  N.  Y.  65,  69;  31  N.  E.  Rep.  1001. 

^  Bolton  r.  8chriever,  135  N.  Y.  65,  69 ;  31  N.  E.  Rep.  1001 ;  McFarland 
V.  Stone,  17  Vt.  165;  44  Am.  Dec.  325. 

5  In  re  Couts,  87  Cal.  480 ;  25  Pac.  Rep.  685 ;  Lataillade  v.  Orena,  91 
Cal.  565,  576;  27  Pac.  Rep.  924;  Shoemaker  v.  Brown,  10  Kan.  383;  Sin- 
gerly  v.  Swain,  33  Penn.  St.  102;  75  Am.  Dec.  581 ;  Schultz  v.  Schultz,  10 
Grattan,  358;  60  Am.  Dec.  335,  353,  note;  Freeman  on  Judg.,  3d  ed., 
sees.  319a,  608;  Green  v.  Creighton,  10  S.  &  M.  (Miss.)  159;  48  Am.  Dec. 
742. 

*  Lataillade  v.  Orena,  91  Cal.  565,  576;  27  Pac.  Rep.  924;  Griffith  v. 
Godey,  113  U.  S.  89;  5  Sup.  Ct.  Rep.  383;  Shoemaker  r.  Brown,  10  Kan. 
383. 

^  Mix's  Appeal,  35  Conn.  121 ;  95  Am.  Dec.  222. 

fi  Mix's  Appeal,  35  Conn.  121;  95  Am.  Dec.  222;  Lucich  v.  Medin,  3 
Nev.  93 ;  93  Am.  Dec.  376 ;  Wiggin  v.  Swett,  6  Met.  194 ;  39  Am.  Dec. 
716,  724,  note. 

'  Stubblefield  v.  McRaven,  5  S.  &  M.  (Miss.)  130;  43  Am.  Dec.  502,  506, 
note;  Wiggin  v.  Swett,  6  Met.  194;  39  Am.  Dec.  716,  724,  note. 


PKOBATE    JURISDICTION.  439 

on  the  ground  that  the  person  to  whom  the  grant  was 
made  was  not  competent  to  qualif}'.' 

As  jurisdiction  is  sometimes  given  of  "all  probate 
matters''  without  defining  such  jurisdiction,  the  question 
has  been  presented  in  some  cases  as  to  what  is  included  in 
the  term  probate  matters.^ 

A  court  of  probate  has  been  defined  as  "  a  court  exer- 
cising jurisdiction  over  the  estates  of  deceased  persons, 
possessing,  as  to  personal  assets,  nearly  all  the  powers 
formerly  exercised  by  the  courts  of  chancery  and  the  ec- 
clesiastical courts  of  England."^ 

1  Palmer  v.  Oakley,  2  Doug.  433 ;  47  Am.  Dec.  41. 

^  Winch  V.  Tobin,  107  111.  212. 

^Anderson,  Die.  of  Law,  815;  Board  of  Public  Works  v.  Columbia 
College,  17  Wall.  521;  Houston  v.  Killough,  80  Tex.  296;  16  S.  W. 
Rep.  56. 

"  Of  the  probate  courts  it  is  only  said  that  a  part  of  the  judicial  power 
of  the  territory  shall  be  vested  in  them.  What  part?  The  answer  to 
this  must  be  sought  in  the  general  nature  and  jurisdiction  of  such  courts 
as  they  are  known  in  the  history  of  the  English  law  and  in  the  jurispru- 
dence of  this  country.  It  is  a  tempting  subject  to  trace  the  history  of 
the  probate  of  wills  and  the  administration  of  the  personal  estates  of 
decedents,  from  the  time  it  was  held  to  be  a  matter  of  exclusive  ecclesi- 
astical prerogative,  down  to  the  present.  It  is  sufficient  to  say  that 
through  it  all,  to  the  present  hour,  it  has  been  the  almost  uniform  rule 
among  the  people,  who  make  the  common  law  of  England  the  basis  of 
their  judicial  system,  to  have  a  distinct  tribunal  for  the  establishment 
of  wills  and  the  administration  of  the  estates  of  men  dying  either  with 
or  without  wills.  These  tribunals  have  been  variously  called  preroga- 
tive courts,  probate  courts,  surrogates,  orphans'  courts,  etc.  To  the 
functions  more  directly  appertaining  to  wills  and  the  administration  of 
estates,  have  occasionally  been  added  the  guardianship  of  infants  and 
control  of  their  property,  the  allotment  of  dower,  and  perhaps  other 
powers  related  more  or  less  to  the  same  general  subject.  Such  courts 
are  not  in  their  mode  of  proceeding  governed  by  the  rules  of  the  com- 
mon law.  They  are  without  juries,  and  have  no  special  system  of 
pleading.  They  may  or  may  not  have  clerks,  sheriflFs,  or  other  analo- 
gous officers.  They  were  not  in  England  considered  originally  as  courts 
of  record ;  and  have  never,  in  either  that  country  or  this,  been  made 
courts  of  general  jurisdiction,  unless  the  attempt  to  do  so  in  this  case 
be  successful."     Perris  v.  Higley,  20  Wall.  .'^75. 

"  The  proceeding  provided  by  section  1604  of  the  Code  of  Civil  Pro- 
cedure is  a  .special  proceeding  (Smith  v.  Westerfield,  88  Cal.  374),  and  is 
embraced  within  the  scope  of  '  matters  of  probate,'  as  clearly  so  as  is 


440      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

And  it  is  said  that  "  such  courts  collect  the  assets,  allow 
claims,  direct  payments  and  distributions  of  the  property 
to  legatees  or  others  entitled,  and  generally,  do  every  | 
thing  essential  to  a  final  settlement  of  the  affairs  of  the  fl 
deceased,  and  the  claims  of  creditors  against  the  estate.^" 
But  this  does  not  extend  to  controversies  between  the  es- 
tate and  third  parties  not  claiming  under  such  estate  or  as 

the  proceeding  for  the  sale  of  real  property  to  pay  debts  of  an  estate. 
The  objects  of  probate  proceedings  are  to  administer,  settle,  and  dis- 
tribute the  estates  of  deceased  persons.  They  are  commenced  by  peti- 
tion for  letters  of  administration,  or  for  the  probate  of  wills,  and  they 
are  closed  by  a  decree  distributing  '  the  residue  of  the  estate  in  the 
liands  of  the  executor  or  administrator,  if  any,  among  the  persons  w/io 
hy  law  are  entitled  thereto'  (Code  Civ.  Proc,  sec.  1G65),  and  an  order  dis- 
charging the  executor  or  administrator,  but  who  can  not  be  discharged 
from  his  trust  until  he  has  '  delivered  up,  under  the  order  of  the  court 
(order  of  distribution),  all  the  property  of  the  estate  to  the  parties  entitled.' 
(Sec.  1697.)  It  will  not  be  denied  that  the  decree  of  distribution,  and 
the  order  discharging  the  executor  or  administrator  are  within  the  scope 
of  '  matters  of  probate,'  in  the  sense  of  the  constitution,  from  which  it 
necessarily  follows  that  the  court  must  have  the  incidental  power,  iu 
some  mode,  to  ascertain  and  determine  who  are  entitled,  as  distributees, 
to  the  residue  of  the  estate,  even  though  such  determination  should  in- 
volve a  question  as  to  title  or  possession  of  real  property  ;  and  I  see  no 
objection,  on  constitutional  grounds,  to  the  mode  provided  by  section 
1664  of  the  Code  of  Civil  Procedure.  The  superior  court,  while  sitting 
in  matters  of  probate,  is  the  same  as  it  is  while  sitting  in  cases  in  equity, 
in  cases  at  law,  or  in  special  proceedings;  and  when  it  has  jurisdiction 
of  the  subject-matter  of  a  case  falling  within  either  of  these  classes,  it 
has  power  to  hear  and  determine,  in  the  mode  provided  by  law,  all  ques- 
tions of  law  and  fact  the  determination  of  which  is  ancillary  to  a  proper 
judgment  in  such  case.  This  is  an  incidental  power  pertaining  '  to  all 
courts,  for  the  purpose  of  enabling  them  to  exercise  the  jurisdiction 
which  is  conferred  upon  them.'  (Smith  v.  Westerfield,  88  Cal.  374.)" 
In  re  Burton,  93'Cal.  459,  463;  29  Pac.  Rep.  36. 

As  to  what  such  a  grant  of  jurisdiction  includes,  see  further:  Hous- 
ton V.  Killough,  80  Tex.  296;  16  S.  W.  Rep.  56;  Aspley  v.  Murphy,  50 
Fed.  Rep.  376;  Simmons  v.  Saul,  138  U.  S.  439;  11  Sup.  Ct.  Rep.  369; 
Detroit,  L.  &  N.  R.  Co.  v.  Probate  Judge,  63  Mich.  676;  30  N.  \V.  Rep. 
598  People  i'.  Loomis,  96  111.  377  ;  Brook  v.  Chappel,  34  Wis.  405  ;  Tryon 
r.  Farnsworth,  30  Wis.  577;  Townsend  v.  Townsend,  4  Cold.  (Tenn.)  70; 
94  Am.  Dec.  184. 

1  Board  of  Public  Works  v.  Columbia  College,  17  Wall.  521 ;  Brook  v. 
Chappel,  34  Wis.  405. 


PROBATE    JURISDICTION.  441 

creditors  of  it ; '  or  to  cases  where  the  question  whether 
the  party  is  a  creditor  or  not,  depends  upon  the  determin- 
ation of  some  matter  not  within  the  jurisdiction  of  the 
probate  court.-  Questions  of  title  to  real  estate,  for  ex- 
ample, arising,  not  under  a  claim  to  receive  it  in  the  distri- 
bution of  the  estate,  but  adversely  to  such  estate,  do  not- 
fall  within  the  jurisdiction  of  a  probate  court,  nor  can  it 
determine  the  rights  of  strangers  to  property  in  the  course 
of  administration.^  But  when  it  becomes  necessary  to 
pass  upon  a  question  of  title  in  order  to  ascertain  and  de- 
termine who  are  entitled  as  distributees  of  the  estate,  a 
probate  court  has  jurisdiction  to  pass  upon  the  question.* 
So  where  the  determination  of  the  question  of  title  is  nec- 
essary for  other  purposes  in  the  administration  of  the  es- 
tate;^ and  a  probate  court  having  power  to  determine 
who  are  the  proper  distributees  of  an  estate  has  power  to 
inquire  into  the  legitimacy  of  children  claiming  to  be  en- 
titled to  distribution ;  ^  and  to  determine  every  disputed 
question  of  fact  necessary  to  ascertain  the  amount  due  to 
each  distributee ;  '^  and  may,  for  the  purposes  of  distribu- 
tion, construe  a  will.^  Such  jurisdiction  extends  to  the 
distribution  of  the  estate,  or  a  part  of  it,  to  persons  claim- 
ing under  the  heirs,  as  this  is  a  part  of  the  settlement  of 

1  Hewitt's  Appeal,  53  Conn.  24;  ]  Atl.  Rep.  815;  Mobley  v.  Andrews, 
55  Ark.  222  ;  17  S.  W.  Rep.  805 ;  Cox  v.  Cox,  77  Tex.  587;  14  S.  W.  Rep. 
201 ;  Hickman  v.  Stone,  69  Tex.  255 ;  5  S.  W.  Rep.  833. 

'  In  re  Miller's  Estate,  136  Pa.  St.  349 ;  20  Atl.  Rep.  565. 

'  Hickman  v.  Stone,  69  Tex.  255  ;  5  S.  W.  Rep.  833 ;  Stewart  r.  Lohr,  1 
Wash.  St.  341  ;  25  Pac.  Rep.  457 ;  In  re  Haas,  97  Cal.  232;  32  Pac.  Rep. 
327 ;  In  re  Kimberly,  97  Cal.  281 ;  32  Pac.  Rep.  234 ;  Hewitt's  Appeal, 
53  Conn.  24 ;  1  Atl.  Rep.  815. 

*  In  re  Burton,  93  Cal.  459 ;  29  Pac.  Rep.  36  ;  Ale  Willie  r.  Van  Vacter, 
.35  Miss.  428  ;  72  Am.  Dec.  127;  Hill  v.  Hardy,  34  Miss.  289. 

^  Succession  of  Bellande,  41  La.  Ann.  491 ;  6  Sou.  Rep.  505 ;  Shaw's 
Estate,  81  Me.  207  ;  16  Atl.  Rep.  662 ;  McWillie  v.  Van  Vacter,  35  Miss. 
428 ;  72  Am.  Dec.  127. 

« In  re  Laramie,  6  N.  Y.  Sup.  175 ;  Riggs  v.  Cragg,  89  N.  Y.  479 ;  In  re 
Jessup,  81  Cal.  408 ;  21  Pac.  Rep.  976. 

'  McLaughlin  v.  McLaughlin,  4  Ohio  St.  .508;  64  Am.  Dec.  603. 

*  Riggs  V.  Cragg,  89  N.  Y.  479 ;  In  re  Verplanck,  91  N.  Y.  439;  Purdy 
V.  Hayt,  92  N.  Y.  446. 


442     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

the  estate.^  And  the  court  has  jurisdiction  to  determine 
whether  such  assignment  was  made  or  not  as  between  the 
chiimant  and  the  heir.^ 

Formerly,  in  England,  probate  courts  had  cognizance 
only  of  wills  pertaining  to  personal  property,  such  as  per- 
tained, originally,  to  the  ecclesiastical  courts  under  the 
civil  law.  But,  generally,  statutes  conferring  jurisdiction 
in  this  'country  make  no  distinction  between  wills  aflect- 
ing  personal  property  and  those  relating  to  real  estate.'' 
The  general  rule  is  that  probate  jurisdiction  extends  only 
to  the  probate  of  wills  and  not  to  questions  involving  their 
validity  or  the  rights  of  parties  under  them,  unless  such 
jurisdiction  is  expressly  given  by  statute.^  But  this  is 
subject  to  legislative  control,  unless  restrained  by  some 
constitutional  provision,  and  in  most  of  the  states  the 
powers  of  such  courts  are  made  to  cover  the  construction 
of  a  will  when  necessary  in  the  settlement  of  the  estate.^ 
Usually  the  management  and  settlement  of  the  estates  of 
infants,  of  persons  of  unsound  mind,  and  other  incompe- 
tents, are  committed  to  probate  courts,  or  such  as  have 
probate  jurisdiction.^  And  in  some  of  the  states  this  juris- 
diction is  made  exclusive  in  such  courts;^  but  it  is  not, 
strictly  speaking,  probate  business,  although  it  has  been 
classed  as  such,  in  some  cases,  by  statute.^ 

This  is  a  jurisdiction  that  formerly  belonged  to  the 
chancery  courts.^     And  it  is  held  that  the  jurisdiction  in 

1  Hewitt's  Appeal,  53  Conn.  24 ;  1  Atl.  Rep.  815 ;  McLaughlin  v.  Mc- 
Laughlin, 4  Ohio  St.  508;  64  Am.  Dec.  603. 

2  McCabe's  Estate,  18  N.  Y.  Supl.  715. 

''  Ellis  V.  Davis,  109  U.  S.  485 ;  3  Sup.  Ct.  Rep.  327. 

*  Hanscom  v.  Marston,  82  Me.  288;  19  Atl.  Rep.  460. 

s  Glover  r.  Reid,  80  Mich.  228;  45  N.  W.  Rep.  91. 

6  Perris  v.  Higley,  20  Wall.  375 ;  Wing  v.  Dodge,  80  111.  564 ;  Wilson  v. 
Roach,  4  Cal.  362;  Gorman  v.  Taylor,  43  Ohio  St.  86;  IN.  E.  Rep.  227; 
Shroyer  v.  Richmond,  16  Ohio  St.  455;  Reed  v.  Ring,  93  Cal.  96;  28  Pac. 
Rep.  851. 

'  Gorman  v.  Taylor,  43  Ohio  St.  86 ;  1  N.  E.  Rep.  227 ;  Shroyer  v.  Rich- 
mond, 16  Ohio  St.  455. 

«  Winch  V.  Tobin,  107  111.  212. 

9  Brown  v.  Snell,  57  N.  Y.  286 ;  Davis  v.  Spencer,  24  N.  Y.  386. 


PROBATE    JURISDICTION.  443 

the  probate  court  is  controlled  by  the  general  rules  of 
equity  jurisprudence  relating  thereto.^ 

A  distinction  is  made  between  guardians  appointed  by 
the  court  and  testamentary  guardians  with  respect  to  the 
jurisdiction  of  the  court  over  them.  And  it  is  held  that 
tlie  court  can  exercise  no  jurisdiction  over  the  latter  ex- 
cept such  as  is  expressly  conferred  upon  it  by  statute.^ 
But  jurisdiction  over  testamentary  guardians  is  generally 
given  by  statute.^  And  in  the  absence  of  statutory  pro- 
visions conferring  jurisdiction,  courts  of  chancery  have 
control  of  such  guardianships.* 

The  existence  of  a  testamentary  guardian  does  not  de- 
prive the  court  of  power  to  appoint  a  statutory  guardian 
where  such  testamentary  guardian  has  not  taken  upon 
himself  the  trust  or  entered  upon  the  performance  of  its 
duties.  It  is  otherwise  where  such  guardian  has  entered 
u]>on  the  management  of  the  guardianship  under  the  direc- 
tion of  the  probate  court.^  ISTor  does  the  fact  that  a  guar- 
dian has  been  appointed  in  another  state  deprive  the  court 
of  such  jurisdiction.® 

J  u  risdiction  of  the  settlement  of  estates  was  also  in  courts 
of  chancery.^  This  jurisdiction  grew  up  mainly  out  of  the  in- 
adequacy of  the  ecclesiastical  court  to  aflbrd  the  proper  re- 
lief, and  resulted,  in  part,  from  the  general  j  urisdiction  of  the 
equity  courts  in  matters  of  trusts  and  accounting.  And  the  ju- 
risdiction is  still  maintained  in  such  courts,  or  courts  having 

1  Brown  v.  Snell,  57  N.  Y.  286. 

2  Matter  of  Hawley,  104  N.  Y.  250,  263 ;  10  N.  E.  Rep.  352. 

3  Matter  of  Hawley,  104  N.  Y.  250,  263 ;  10  N.  E.  Rep.  352 ;  Fridge  v. 
State,  3  Gill  &  J.  103;  20  Am.  Dec.  463;  Matter  of  Van  Houten,  2  Green 
Ch.  220;  29  Am.  Dec.  707,  712,  note. 

*  Matter  of  Van  Houten,  2  Green  Ch.  220;  29  Am.  Dec.  707,  715,  note ; 
Lord  V.  Hough,  37  Cal.  657,  663. 

*  Fridge  v.  State,  3  Gill  &  J.  103;  20  Am.  Dec.  463. 

«  Kraft  r.  Wickey,  4  Gill  &  J.  332 ;  23  Am.  Dec.  569. 

'  Board  of  Public  Works  r.  Columbia  College,  17  Wall.  521 ;  Deck  v. 
Gerke,  12  Cal.  433;  73  Am.  Dec.  555;  Russell  v.  Madden.  95  111.  485; 
Clarke  r.  Perry,  5  Cal.  58 ;  63  Am.  Dec.  82,  84,  note ;  Konigmacher  v. 
Kimmel,  1  Pen.  &  Watts,  207 ;  21  Am.  Dec.  374. 


I 


444     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

equity  jurisdiction,  in  some  of  the  states,  unless  it  is  made 
exclusive  in  the  probate  court,^ 

In  such  cases  the  jurisdiction  is  concurrent,^  and  where 
a  court  of  chancery  takes  jurisdiction  of  the  administra- 
tion for  any  purpose,  it  may  retain  the  same  for  all  pur- 
poses to  the  exclusion  of  the  probate  court.^  And  when 
proceedings  for  settlement  of  the  estate  have  been  com- 
menced in  the  probate  court,  its  jurisdiction  thus  acquired 
will  be  exclusive  of  the  concurrent  jurisdiction  of  a  court 
of  chancery,  unless  some  special  equitable  ground  for  the 
interference  of  the  latter  is  assigned.*  But  it  is  generally 
held  that,  although  the  jurisdiction  is  equitable  in  its 
nature  and  belongs  of  right  to  the  chancery  courts,  it  will 
not  be  exercised  where  the  general  power  over  the  admin- 
istration of  estates  is  given  to  sorhe  other  court,  by  express 
statutory  provision,  except  in  peculiar  and  extraordinary 
cases.^  And  that  where  the  court  takes  jurisdiction  for  a 
particular  purpose,  it  will  not,  after  settling  such  question, 
take  upon  itself  the  entire  settlement  of  the  estate,  except 
for  special  reasons.^ 

The  jurisdiction  of  a  court  of  chancery  over  the  admin- 
istration of  estates  and  the  settlement  of  the  accounts  of 
executors  and  administrators,  where  a  probate  court  is 
provided,  is  expressly  denied  in  some  cases.'^     And,  as  we 

1  Tygh  V.  Dolan,  10  Sou.  Rep.  837 ;  Deck  r.  Gerke,  12  Cal.  433;  73  Am. 
Dec.  555 ;  Wilson  v.  Roach,  4  Cal.  362;  Pennie  v.  Roach,  94  Cal.  515  ;  29 
Pac.  Rep.  956;  30  Pac.  Rep.  106  ;  Salter  v.  Williamson,  1  Green  Ch.  480; 
35  Am.  Dec.  513. 

*  Robinson  v.  Stanley,  38  Vt.  570 ;  Brook  v.  Chappel,  34  Wis.  405 ; 
Tryon  v.  Farnsworth,  30  Wis.  577 ;  Shoemaker  v.  Brown,  10  Kan.  383. 

3  Tygh  V.  Dolan,  10  Sou.  Rep.  837. 

*  Espalla  V.  Dolan,  8  Sou.  Rep.  491 ;  Green  v.  Creighton,  10  S.  &  M. 
(Miss.)  159;  48  Am.  Dec.  742,  744,  note. 

*  Board  of  Public  Works  r.  Columbia  College,  17  Wall.  521 ;  Espalla  v. 
Dolan,  8  Sou.  Rep.  491 ;  Harding  v.  Shepard,  107  111.  264;  Grain  r.  Ken- 
nedy, 85  111.  340;  Gorman  v.  Taylor,  43  Ohio  St.  86;  1  N.  E.  Rep.  227. 

«  Cowdrey  v.  Hitchcock,  103  111.  262,  276. 

'  Green  v.  Creighton,  10  S.  &  M.  (Miss.)  159;  48  Am.  Dec.  742 ;  Morn- 
ingstar  v.  Selby,  15  Ohio,  345 ;  45  Am.  Dec.  579 ;  Matter  of  Sinclair,  5 
Ohio  St.  291. 


PROBATE   JURISDICTION.  445 

Lave  seen  above,  the  jurisdiction  of  the  probate  court  is  in 
many  of  the  states  made  exclusive  by  statutory  provisions. 

In  X)ther  cases,  it  is  held  that  there  are  certain  matters 
connected  with  the  administration  of  estates  so  essentially 
a  part  of  the  general  jurisdiction  of  courts  exercising 
chancery  powers  that  where  common  law  and  equity  juris-^ 
diction  is  conferred  upon  certain  other  courts  by  the  con- 
stitution of  the  state,  a  statute  conferring  exclusive  juris- 
diction of  the  settlement  of  estates  upon  probate  courts  is 
unconstitutional,  for  the  reason  that  it  takes  away  some 
of  the  equitable  jurisdiction  of  such  courts,^  And  it  is 
held  that  a  court  of  chancery  may  interpose  where  the 
probate  court  is  wholly  incompetent  to  give  relief  and  the 
party  is  entitled  to  it.^ 

Some  of  the  cases  take  the  broad  ground  that  the  legis- 
lature has  no  power  to  confer  upon  probate  courts  com- 
mon-law or  equity  jurisdiction.^     But  the  weight  of  au- 

'  Perris  v.  Higley,  20  Wall.  375 ;  Garcia  y  Perea  v.  Barela,  23  Pac.  Rep. 
766 ;  Detroit  L.  &  N.  R.  Co.  v.  Probate  Judge,  63  Mich.  676 ;  30  N.  W. 
Rep.  598. 

2  Wade  V.  American  Col.  So.,  7  S.  &  M.  (Miss.)  663;  45  Am.  Dec.  324. 

'  "  The  probate  court  is  a  court  which,  although  declared  a  court  of 
record,  and  having  large  and  important  powers,  is  nevertheless  an  in- 
ferior court,  subject  to  the  review  of  the  circuit  courts,  and  not  designed 
or  adapted  to  the  exercise  of  the  ordinary  judicial  power,  in  dealing 
with  litigated  questions  affecting  persons  not  subject  to  the  exercise  of 
prerogative  jurisdiction,  and  entirely  sui  juris.  The  jurisdiction  over 
contentious  litigation  belongs,  under  the  constitution,  to  courts  of  law 
and  equity.  In  order  to  make  such  authority  efficient  as  is  exercised 
by  respondent  in  this  case,  it  is  absolutely  necessary,  and  theetatuteso 
provides,  to  restrain  the  parties  whose  land  is  taken  from  suing  in  other 
courts.  Such  suits  must  be  brought  usually  in  the  circuit  courts,  and 
may  be  taken,  by  appellate  action,  to  this  court.  It  is  out  of  the  ques- 
tion that  an  inferior  court  can  stay  proceedings  in  those  courts  to  which 
the  law  has  made  it  subordinate.  In  the  present  case,  to  make  this  pro- 
bate order  effective,  that  court  must  be  able  to  lay  its  hands  on  the  pro- 
ceedings now  pending  in  this  court,  or,  previous  to  the  appeal  here,  to 
stay  action  in  the  Livingston  circuit  court,  or  in  any  other  court  in  ihe 
state  where  parties  might  litigate  the  trespass  committed  by  the  peti- 
tioning railroad  company.  Such  a  proposition  can  not  be  maintained. 
No  such  jurisdiction  can  be  conferred  on  a  probate  court.  It  is  foreign 
to  the  constitution  of  such  courts,  and  subversive  of  the  constitutional 
distribution  of  judicial  powers.    The  nature  of  probate  courts  was  dis- 


446      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

thority  is  undoubtedly  against  this  view,  the  right  hav- 
ing been  exercised  by  the  legislatures  and  recognized  by 
the  courts  in  many  if  not  the  most  of  the  states.^ 

It  is  usually  held,  however,  that  the  power  to  construe 
a  will  at  the  instance  of  the  executors,  particularly  where 
such  will  creates  a  special  trust  in  such  executors  as  to 
lands  of  the  testator,  is  peculiarly  within  the  jurisdiction 
of  a  court  of  chancery,  and  will  be  exercised  by  it  not- 
withstanding the  existence,  within  the  same  jurisdiction, 
of  a  court  of  probate.^     And  in   some  of  the  states  the 

cussed  iu  Ferris  v.  Higley,  20  Wall.  375,  where  it  was  held  beyond  the 
power  of  the  legislature  of  Utah  to  give  them  common-law  and  equity 
jurisdiction.  They  have  existed  in  Michigan  since  its  complete  terri- 
torial organization,  and  their  character  has  never  been  doubtful.  They 
have  always  been  regarded  as  courts  for  peculiar  and  limited  purposes, 
which  are  outside  of  ordinary  litigation,  and  incapable  of  dealing  com- 
pletely with  ordinary  rights."  Detroit,  L.  &  N.  E.  Co.  v.  Probate  Judge, 
63  Mich.  676 ;  30  N.  W.  Rep.  598,  600. 

1  Weruse  v.  Hall,  101  111.  423. 

^  Whitman  v.  Fisher,  74  111.  147 ;  Woodfin  v.  Phoebus,  30  Fed.  Rep. 
289;  Bridges?^.  Rice,  99  111.  414. 

"Coming  to  another  question  much  dwelt  upon  in  the  argument,  I 
am  ver}'  confident  that  this  bill  presents  no  conflict  of  jurisdiction  with 
the  probate  court  of  Elizabeth  City  county.  The  demurrant  herself 
recognizes  this  fact  by  having  filed  a  bill  for  a  sale  in  the  chancery  court 
of  that  county.  The  powers  of  a  probate  court  are,  in  Virginia,  not 
greater  than  those  of  the  ecclesiastical  courts  of  England,  which,  with 
respect  to  the  administration  of  trusts  created  by  wills,  are  proverbially 
courts  of  'a lame  jurisdiction.'  When  the  jurisdiction  of  a  court  of 
chancery  is  invoked  by  or  against  an  executor,  to  direct  the  administra- 
tion of  a  will,  its  power  to  do  so  has  been  held  to  exist  from  the  begin- 
ning of  chancery  jurisprudence  in  England,  and  not  in  any  manner  or 
degree  to  interfere  with  that  of  a  probate  court,  exercising  its  legitimate 
jurisdiction  as  such.  Mr.  Pomeroy  says  that  the  relation  subsisting  be- 
tween executors  and  administrators,  on  the  one  hand,  and  legatees,  dis- 
tributees, and  creditors,  on  th^  other,  has  so  many  of  the  features  and 
incidents  of  an  express,  active  trust  that  it  has  been  completely  em- 
braced within  the  equitable  jurisdiction  in  England,  and  also  in  the 
United  States,  where  the  statutes  of  states  have  not  interferred  to  take 
away  or  abridge  the  jurisdiction.  (Section  156.)  He  gives  a  full  dis- 
cussion to  the  character  of  the  several  and  varying  state  statutes  (sec- 
tions 346-352),  and,  in  view  of  all  their  provisions,  declares  that,  'al- 
though the  general  jurisdiction  of  equity  over  the  subject  of  adminis- 
tration is  practically,  and  even,  in  the  instances  of  some  states,  expressly, 
abolished,  still  the  jurisdiction  remains  in  all  matters  of  trusts  created 


PROBATE   JURISDICTION.  447 

jurisdiction  extends,  by  virtue  of  statutory  provisions, 
to  all  trusts  arising  under  wills.^  And  it  is  sometimes 
held  that  a  probate  court  has  no  power  to  construe  a 
will.2 

A  court  of  equity  has  no  original  jurisdiction  to  order 
the  sale  of  real  estate  to  pay  debts,  or  for  any  other  pur-^ 
pose,  so  as  to  bind  the  infant's  legal  estate.^  Xor  will  a 
court  of  chancery  entertain  jurisdiction  where  there  is  no 
personal  estate,  and  no  trust,  but  merely  a  claim  to  a  legal 
estate  in  lands.* 

In  some  of  the  cases,  it  is  held  that  the  probate  court  is 
a  court  of  equity  to  the  extent  that  it  has  the  power  to 
administer  equity  in  matters  properly  before  it.^  But  this 
is  not  full  equity  jurisdiction,  but  such  only  as  is  adapted 
to  its  organization  and  modes  of  proceeding.^ 

In  some  of  the  states,  such  courts  are  given  very  broad 

by  or  arising  from  the  provisions  of  wills ;  and  that  thus  a  large  field 
is  left  for  the  exercise  of  the  equitable  jurisdiction  in  the  construction 
of  wills,  and  in  the  determination  and  enforcement  of  equitable  rights, 
interests,  and  estates  created  and  conferred  thereby.' 

"It  can  not  be  pretended,  however  the  case  may  be  in  other  states, 
that  general  chancery  powers  over  the  administration  of  the  estates  of 
decedents  have  in  Virginia  been  taken  away  from  courts  of  equity,  as 
such,  and  transferred  to  courts  of  probate.  And  even  if  the  general 
jurisdiction  had  been  taken  away  here,  still  it  is  laid  down  by  Mr.  Pom- 
eroy  that  the  peculiar,  ancient,  and  inherent  power  of  chancery  over 
the  trust  created  by  wills,  which  are  the  most  sacred  of  all  trusts,  has 
not  in  any  of  the  states  been  taken  away. 

"  There  seems,  therefore,  to  be  no  doubt  of  the  competency  of  a  court 
of  chancery  to  assume  the  direction  of  the  trusts  of  a  will,  in  a  case 
properly  brought  before  it."  Woodfin  v.  Phoebus,  30  Fed.  Rep.  289, 
291. 

'  Hooper  v.  Hooper,  63  Mass.  122,  127. 

-  Clears  v.  Mears,  15  Ohio  St.  90. 

'Whitman  v.  Fisher,  74  111.  147,  154;  Elliott  v.  Shuler,  50  Fed.  Rep. 
454:  Onderdonk  v.  Mott,  34  Barb.  106;  Moflatt  t'.  Moffitt,  69  111.  641. 

*  Onderdonk  r.  Mott,  34  Barb.  106. 

^Hewitt's  Appeal,  53  Conn.  24;  1  Atl.  Rep.  815;  Doggett  r.  Dill,  108 
111.  560;  48  Am.  Rep.  565;  Brandon  r.  Brown,  106  111.  519;  Dixon  v. 
Buell,  21  111.  202;  In  re  Steele,  65  111.  322;  In  re  Moore,  96  Cal.  522;  31 
Pac.  Rep.  584;  Lewis  r.  Lewis,  13  Penn.  St.  79;  53  Am.  Dec.  443;  Powell 
V.  North,  3  Ind.  392;  56  Am.  Dec.  513;  McPherson  v.  Cunliff,  11  Serg.  & 
Raw.  422 ;  14  Am.  Dec.  642. 

^  Wadsworth  r.  Connell,  104  111.  369,  378. 


448      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

and  ample  authority  to  deal  with  trusts  and  matters  of  ac- 
counts growing  out  of  the  administration  of  estates.^  But 
there  is  a  clear  distinction  between  matters  which  can 
only  arise  in  the  settlement  of  an  estate,  or  guardianship, 
and  questions  which  do  not  depend  upon  the  administra- 
tion of  such  estate,  but  may  or  may  not  arise  therein,  and 
which  belong  to  the  general  equity  jurisdiction  of  courts 
of  chancery.  And  it  is  held  that,  as  to  the  latter,  courts 
of  probate  have  no  jurisdiction,  although  such  jurisdiction 
may  be  invoked  in  the  settlement  of  an  estate,  uuless  ex- 
pressly conferred  upon  such  court  by  statute.^  But,  as 
has  been  said,  this  is  a  matter  of  legislation,  subject 
to  constitutional  limitations,  which  have  been  pointed 
out  above.  And  as  to  purely  probate  matters  involving 
the  probate  of  wills  and  the  ordinary  administrative  pro- 
ceedings involved  in  the  administration  of  estates,  a  court 
of  chancery  has  no  power,  as  a  part  of  its  general  equity 
jurisdiction,  to  act.  Such  jurisdiction  belonged,  in  Eng- 
land, to  the  ecclesiastical  courts,  and  passes  by  a  general 
grant  of  probate  jurisdiction.^     And  a  grant  of  common 

1  Phillips  V.  Phillips,  18  Atl.  Rep.  579 ;  Robinson  v.  Stanley,  38  Vt.  570; 
Tryon  v.  Farnsworth,  30  Wis.  577. 

^  Gilliland  v.  Sellers,  2  Ohio  St.  223 ;  In  re  Camp,  126  N.  Y.  377 ;  27  N. 
E.  Rep.  799. 

^  "  By  the  frame  of  the  bill,  as  well  as  its  prayer,  and  the  decree  of 
the  chancellor,  it  seems  to  have  been  apprehended,  if  the  probate  of  the 
will  in  the  county  court  was  defective  from  lapse  of  time  or  otherwise, 
such  defects  could  be  cured  by  the  action  of  the  chancery  court.  This  is 
a  mistaken  apprehension.  At  no  time  has  it  been  held  that  a  court  of 
equity  had  jurisdiction  of  the  probate  of  wills.  It  readily  holds  admin- 
istrators and  executors  to  an  account  of  the  funds  which  came  into  their 
hands,  and  gives  construction  and  interpretation  to  testamentary  papers, 
but  never  exercises  strictly  probate  jurisdiction. 

"  In  England,  that  jurisdiction  belonged  to  the  ecclesiastical  courts ; 
and  in  an  early  day  in  North  Carolina,  there  being  no  ecclesiastical 
courts  in  this  country,  the  probate  of  wills  was  given  to  the  county 
courts ;  and  when  this  state  was  erected  out  of  the  territory  of  North 
Carolina,  this  jurisdiction,  for  the  same  reason,  was  continued  in  the 
county  courts,  which  to  this  day  have  the  exclusive  jurisdiction  of  wills 
and  testaments:  Burrow  v.  Ragland,  6  Humph.  481."  Townsend  v. 
Townsend,  4  Cold.  (Tenn.)  70;  94  Am.  Dec.  189;  Morningstar  v.  Selby, 
15  Ohio,  345 ;  45  Am.  Dec.  579. 


V 


PROBATE    JUKISDICTION.  449 

law  and  equity  jurisdiction  does  not  include  jurisdiction 
in  matters  of  probate.^ 

The-  important  question  as  to  the  extent  of  chancery 
jurisdiction  in  matters  growing  out  of  the  administration 
of  estates  and  settlement  of  guardianships,  depends  so 
much  upon  the  constitutional  and  statutory  provisions  in 
the  difierent  states,  and  these  provisions  differ  so  mate- 
rially, that  only  general  principles  can  be  stated  in  a  gen- 
eral work  of  this  kind  with  references  to  the  decisions  in 
the  different  states,  showing  to  what  extent  jurisdictional 
rules  and  principles  have  been  established  or  modified  in 
the  different  states.  To  attempt  to  cite  or  comment  upon 
the  different  statutes  would  carry  us  beyond  the  legitimate 
scope  of  the  work  now  in  hand.^ 

Questions  arising  in  the  settlement  of  estates  are  pecu- 
liarly within  the  jurisdiction  of  the  probate  court,  as  a 
general  rule,  and  such  court  will  not  deny  relief  for  the 
reason  that  the  party  has  an  adequate  remedy  at  law.^ 

But  where  the  jurisdiction  of  the  court  is  specifically 
defined  and  limited  by  statute,  an  exercise  of  the  general 
jurisdiction  of  a  court  of  equity,  when  not  authorized  by 
the  statute,  is  coram  non  judice  and  void.^  This  results, 
necessarily,  from  the  doctrine  that  the  court  is  one  of  lim- 
ited jurisdiction. 

In  some  of  the  states  probate  courts  are  almost  entirely 
administrative  in  their  character,  and  have  no  jurisdiction 
to  determine  controverted  questions.^     But  this,  as  stated 

^  Morningstar  v.  Selby,  15  Ohio,  345 ;  45  Am.  Dec.  579. 

^  A  discussion  of  this  question  will  be  found  in  a  note  to  Deck  v. 
Oerke,  73  Am.  Dec.  558,  in  which  will  be  found  a  statement  taken  from 
3  Pomeroy's  Eq.  Jur.,  sec.  1154,  classifying  the  legislation  on  the  subject 
by  states. 

See,  also,  note  to  Green  v.  Creighton,  48  Am.  Dec.  744. 

^  Brook  V.  Chappel,  34  Wis.  405. 

*  Gilliland  v.  Sellers,  2  Ohio  St.  223 ;  Hanscom  v.  Marston,  82  Me.  288 ; 
19  Atl.  Rep.  460. 

5  Hauscom  v.  Marston,  82  Me.  288 ;  19  Atl.  Rep.  460 ;  Detroit  L.  &  X. 
R.  ('o.  V.  Probate  Judge,  63  Mich.  676;  30  N.  W.  Rep.  598. 

"  Probate  courts  have  no  constitutional  nor  common-law  origin.  They 
were  created  by  statute  almost  solely  for  administrative  purposes,  and 
29 


450      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION, 

above,  is  not  generally  the  case.  The  tendency  and  effect 
of  legislation  has  been  to  extend  and  broaden  the  jurisdic- 
tion of  such  courts  in  order  that  they  may  have  power  to 
decide  every  question  necessary  to  the  entire  and  final  set- 
tlement of  an  estate.^ 

The  general  equity  jurisdiction  of  the  federal  courts,  in 
the  administration  of  estates,  can  not  be  taken  away  or 
limited  by  state  laws.^  Therefore  the  fact  that  all  chan- 
cery jurisdiction  over  the  administration  of  estates  has,  by 
state  laws,  been  vested  in  a  probate  court,  does  not  affect 
the  jurisdiction  of  the  federal  courts,  although  it  may  de- 
prive the  chancery  courts  of  the  state  of  all  such  jurisdic- 
tion.^ Nor  does  the  fact  that  property  is  being  adminis- 
tered upon  in  a  state  court  having  jurisdiction,  and  that  a 
party  might  apply  to  such  court  for  relief,  bar  the  institu- 
tion of  proceedings,  with  reference  to  such  property,  in 

what  little  '  contentious  jurisdiction'  they  may  possess  is  only  incidental 
to  their  administrative  jurisdiction.  They  have  no  administrative  pow- 
ers, even,  beyond  those  conferred  by  statute.  So  true  is  this  that,  in 
the  absence  of  a  statute  authorizing  it,  a  probate  court  can  not  empower 
an  administrator  to  sell  land  for  payment  of  debts.  Without  the  statute, 
he  would  need  resort  to  a  court  of  chancery  powers.  The  probate  court 
has  the  power,  upon  proper  proceedings,  to  make  a  decree  of  distribu- 
tion, and,  if  there  be  no  will,  to  determine  who  are  the  heirs,  and  the 
share  of  each  (Loring  v.  Steineman,  1  Mete.  204;  Eev.  Stat.,  c.  65,  sec. 
27) ;  but  it  has  no  power  in  this  state  to  construe  a  will — to  determine 
its  effect  upon  the  distribution  of  the  estate — or  to  adjudicate  between 
the  heirs  and  the  residuary  legatees.  Such  power  is  given  to  probate 
courts  in  some  states,  but  in  our  system  it  is  reserved  to  the  law  and 
equity  courts.  Where  there  is  a  will,  as  in  this  case,  the  probate  court 
may  determine  when  the  estate  is  fully  settled,  and  may  then  order  the 
executor  to  distribute  the  balance  according  to  the  will,  so  far  as  the 
will  directs,  otherwise  according  to  law,  but  there  its  power  ends.  What 
the  will  does  direct,  or  whether  it  directs  at  all,  are  questions  for  another 
tribunal.  The  executor,  like  other  officers,  must  learn  the  law,  and,  un- 
like many  other  officers,  he  can  obtain  from  the  equity  court  an  author- 
itative construction  of  the  will,  and  authoritative  directions  how  to 
perform  the  duties  of  his  trust,  so  far  as  legacies  are  concerned." 
Hanscom  v.  Marston,  82  Me.  288;  19  Atl.  Rep.  460. 

'  McWillie  v.  Van  Vacter,  35  Miss.  428 ;  72  Am.  Dec.  127 ;  Linsenbig- 
ler  V.  Gourley,  56  Pa.  St.  166;  94  Am.  Dec.  51. 

2  Payne  v.  Hook,  7  Wall.  425. 


i 


PROBATE   JURISDICTION.  461 

the  federal  courts.'  Nor  can  the  right  to  sue  an  admin- 
istrator or  executor  in  a  federal  court  be  taken  away  by  a 
state  statute.^ 

The  jurisdiction  of  the  federal  courts  does  not  extend  to 
the  probate  of  wills  or  empower  them  to  set  aside  and  an- 
nul the  probate  of  a  will  of  personal  or  real  estate.  They 
can  only  inquire  into  the  validity  of  a  will  in  a  case  at  law 
or  in  equity  where  it  becomes  necessary  to  settle  a  contro- 
versy of  w^hich  they  may  take  cognizance  by  reason  of  the 
citizenship  of  the  parties.^ 

But  the  federal  courts  have  jurisdiction  to  entertain  a 
suit  to  annul  a  will,  as  a  muniment  of  title,  between  citi- 
zens of  different  states,  where  such  a  suit  could  be  main- 
tained in  any  of  the  courts  of  the  state.  It  is  in  all  es- 
sential respects  a  suit  for  equitable  relief.* 

'  Griswold  v.  Central  Vermont  R.  Co.,  9  Fed.  Rep.  797 ;  Erwin  v. 
Lowry,  7  How.  172. 

^  Suydam  v.  Broadnax,  14  Pet.  67. 

3  Ellis  V.  Davis,  109  U.  S.  485 ;  3  Sup.  Ct.  Rep.  327. 

"  The  judicial  power  of  the  United  States  extends,  by  the  terms  of 
the  constitution,  '  to  controversies  between  citizens  of  different  states;' 
and  on  the  supposition,  which  is  not  admitted,  that  this  embraces  only 
such  as  arise  in  cases  '  in  law  and  equity,'  it  does  not  necessarily  ex- 
clude those  which  may  involve  the  exercise  of  jurisdiction  in  reference 
to  the  proof  and  validity  of  wills.  The  original  probate,  of  course,  is 
mere  matter  of  state  regulation,  and  depends  entirely  upon  the  local 
law;  for  it  is  that  law  which  confers  the  power  of  making  wills,  and 
prescribes  the  conditions  upon  which  alone  they  may  take  effect ;  and 
as,  by  the  law  in  all  the  states,  no  instrument  can  be  effective  as  a  will 
until  proved,  no  rights  in  relation  to  it,  capable  of  being  contested 
between  parties,  can  arise  until  preliminary  probate  has  been  first 
made.  Jurisdiction  as  to  wills,  and  their  probate  as  such,  is  neither  in- 
cluded in  nor  excepted  out  of  the  grant  of  judicial  power  to  the  courts 
of  the  United  States.  So  far  as  it  is  ex  parte  and  merely  administrative, 
it  is  not  conferred,  and  it  can  not  be  exercised  by  them  at  all  until,  in  a 
case  at  law  or  in  equity,  its  exercise  becomes  necessary  to  settle  a  con- 
troversy of  which  a  court  of  the  United  States  may  take  cognizance  by 
reason  of  the  citizenship  of  the  parties."  Ellis  r.  Davis,  109  U.  S.  485; 
3  Sup.  Ct.  Rep.  327,  334. 

*  "  But  the  admission  supposed  is  not  required  in  this  case.  The  suit 
in  the  parish  court  is  not  a  proceeding  to  establish  a  will,  but  to  annul 
it  as  a  muniment  of  title,  and  to  limit  the  operation  of  the  decree  ad- 
mitting it  to  probate.  It  is,  in  all  essential  particulars,  a  suit  for  equita- 
ble relief — to  cancel  an  instrument  alleged  to  be  void,  and  to  restrain  the 


452      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

The  jurisdiction  of  a  court  of  probate  depends  upon  the 
death  of  the  owner  of  the  estate  sought  to  be  adminis- 
tered, without  which  it  has  no  power  to  act,  and  its  pro- 
ceedings are  wholly  void  ;'  and  generally  upon  the  domi- 
cile of  the  deceased  being  within  the  territorial  jurisdic- 
tion of  the  court  at  the  time  of  his  death,^  or  the  presence 
of  property  of  such  deceased  therein.^  But  whether  the 
property  must  have  been  within  the  jurisdiction  of  the 
court  at  the  time  of  the  death  or  whether  the  bringing  of 
such  property  therein,  subsequently,  is  sufficient,  is  not 
well  settled. 

This  may,  of  course,  turn  upon  the  language  of  the  par- 
ticular statute  under  which  the  proceedings  are  had,  and, 

enforcement  of  a  decree  alleged  to  have  been  obtained  upon  false  and 
insufficient  testimony.  There  are  no  separate  equity  courts  in  Louisiana, 
and  suits  for  special  relief  of  the  nature  here  sought  are  not  there  des- 
ignated suits  in  equity.  But  they  are  none  the  less  essentially  such 
suits ;  and  if  by  the  law  obtaining  in  the  state,  customary  or  statutory, 
they  can  be  maintained  in  the  state  court,  whatever  designation  that 
court  may  bear,  we  think  they  may  be  maintained  by  original  process 
in  a  federal  court,  where  the  parties  are,  on  the  one  side,  citizens  of 
Louisiana,  and,  on  the  other,  citizens  of  other  states."  Gaines  v.  Fuentes, 
92  U.  S.  10,  20. 

'  Griffith  V.  Frazier,  8  Cranch,  9,  23 ;  Mellia  v.  Simmons,  45  Wis.  334 ; 
30  Am.  Rep.  746;  D'Arusment  v.  Jones,  4  Lea,  251;  40  Am.  Rep.  12; 
Roderigas  v.  East  River  Sav.  Inst.,  76  N.  Y.  316;  32  Am.  Rep.  309;  Allen 
V.  Dundas,  3  T.  R.  125;  Freeman  on  Judg.  (3  ed.),  sec.  319a;  Thomas  v. 
People,  107  111.  517  ;  47  Am.  Rep.  458 ;  Haynes  v.  Meeks,  10  Cal.  110;  70 
Am.  Dec.  703;  Fisher  v.  Bassett,  33  Am.  Dec.  239,  note:  Ex  parte  Max- 
well, 79  Am.  Dec.  65,  note  ;  Moore  v.  Smith,  11  Rich.  Law,  569  ;  73  Am, 
Dec.  122,  126,  note;  Andrews  v.  Avory,  14  Grattau,  229;  73  Am.  Dec. 
855;  Scott  v.  McNeal,  154  U.  S.  34;   14  Sup.  Ct.  Rep.  1108. 

A  contrary  rule  is  declared  in  Roderigas  v.  East  River  Savings  Bank, 
63  N.  Y.  460;  20  Am.  Rep.  555 ;  but  this  case  seems  to  stand  alone. 

2  Shaw's  Estate,  81  Me.  207;  16  Atl.  Rep.  662;  Illinois  Cent.  R.  Co.  v. 
Cragin,  71  111.  177 ;  Jeffersonville  R.  Co.  v.  Swayne,  26  Ind.  477 ;  Brough- 
tou  ('.  Bradley,  34  Ala.  694 ;  73  Am.  Dec.  474 ;  Estate  of  Harlan,  24  Cal. 
182;  85  Am.  Dec.  58;  Ex  parte  Maxwell,  79  Am.  Dec.  62,65,  note; 
Johnson  v.  Corpenning,  4  Ire.  Eq.  216;  44  Am.  Dec.  106. 

=*  Territory  v.  Klee,  1  Wash.  St.  183 ;  23  Pac.  Rep.  417  ;  Illinois  Cent.  R. 
Co.  V.  Cragin,  71  111.  177 ;  Shaw's  Estate,  81  Me.  207 ;  16  Atl.  Rep.  662 ; 
Jeffersonville  R.  Co.  v.  Swayne,  26  Ind.  477 ;  Broughton  v.  Bradley,  73 
Am.  Dec.  474,  484,  note  ;  Beckett  v.  Selover.  7  Cal.  215 ;  68  Am.  Dec.  237, 
257,  note. 


PROBATE    JURISDICTION.  453 

usiiall}^,  property  coming  into  a  county  subsequent  to  the 
death,  gives  jurisdiction.^  But  not  always.^  Sometimes 
where  one  dies  out  of  the  state,  leaving  property  in  diiFer- 
ent  counties  therein,  exclusive  jurisdiction  is  given  to  the 
court  first  assuming  such  jurisdiction.  Under  such  a  stat- 
ute any  proceeding  commenced  in  the  court  of  one  county, 
after  the  granting  of  letters  by  the  court  of  another 
county,  is  void.^  A  mere  local  statutory  cause  of  action 
for  damages  for  injury  is  not  property  within  the  meaning 
of  such  statutes  which  will  give  the  court  jurisdiction.* 
There  is  a  material  distinction  between  these  difi:erent  ele- 
ments, or  foundations,  of  jurisdiction.  As  to  the  first:  the 
death  of  the  party  whose  estate  is  aflfected;  no  finding  of 
the  court  of  the  fact  of  the  death  can  give  the  court  ju- 
risdiction, because,  as  above  stated,  if  the  supposed  testate 
or  intestate  is  not  in  fact  dead,  there  is  a  total  want  of  ju- 
risdiction, and  the  proceeding  is  absolutely  void.  There  is 
no  subject-matter  upon  which  the  court  is  given  jurisdic- 
tion to  act.  As  to  the  last  two,  viz :  the  place  of  dom- 
icile, or  the  presence  of  property  of  the  deceased  within 
the  jurisdiction  of  the  court,  they  are  questions  of  fact 
upon  which  the  court  has  jurisdiction  to  find.  And  if 
found  to  exist,  such  finding  is  conclusive  as  against  a  col- 
lateral attack.^     It  must  be  remembered,  however,  that  it 

1  Thomas  v.  "Wood,  61  Ind.  132  ;  Illinois  Cent.  R.  Co.  v.  Cragin,  71  111. 
177;  Jeffersonville  R.  Co.  v.  Swayne,  26  Ind.  477;  Fletcher  v.  Sanders,  7 
Dana,  345  ;  32  Am.  Dec.  96. 

-  Burnett  v.  Meadows,  7  B.  Mon.  277 ;  46  Am.  Dec.  517 ;  Embry  r. 
Millar,  1  A.  K.  Mar.  300;  10  Am.  Dec.  732. 

'  Territory  v.  Klee,  1  Wash.  St.  183;  23  Pac.  Rep.  417. 

*  Illinois  Cent.  R.  Co.  v.  Cragin,  71  111.  177 ;  Jeffersonville  R.  Co.  v. 
Swayne,  26  Ind.  477. 

As  to  what  is  properly  within  the  meaning  of  such  statutes,  and  suffi- 
cient to  give  jurisdiction,  see,  also,  Shaw's  Estate,  81  Me.  207  ;  16  Atl. 
Rep.  662 ;  Jeffersonville  R.  Co.  v.  Swayne,  26  Ind.  477. 

'"Ante,  sees.  23,  25;  Bostwick  v.  Skinner,  80  111.  147;  Monell  r.  Denni- 
son,  17  How.  Pr.  422;  Irwin  v.  Scriber,  18  Cal.  499;  Bolton  v.  Schriever, 
135  N.  Y.  65,  69,  72  ;  31  N.  E.  Rep.  1001 ;  Giddings  v.  Steele,  28  Tex.  733; 
91  Am.  Dec.  336;  Coltart  v.  Allen,  40  Ala.  155;  88  Am.  Dec.  757;  Fisher 
V.  Bassett,  9  Leigh,  119;  33  Am.  Dec.  227,  239,  note;  Andrews  v.  Avory, 
14  Grattan,  229 ;  73  Am.  Dec.  355. 


454     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

is  held  otherwise  in  some  of  the  states,  as  shown  above  in 
this  section.  Where  the  statutory  foundation  of  jurisdic- 
tion to  grant  letters  does  not  exist,  the  letters  will  be  re- 
voked on  a  direct  attack  by  any  one  interested.^  It  is  said 
in  some  of  the  cases  that  letters  granted  under  such  cir- 
cumstances are  coram  7i07i  judice  and  void.  But  they  are 
not  void,  if  the  court  has  found  the  jurisdictional  facts  to 
exist,  but  voidable  only  as  has  been  shown  above. 

Letters  granted  by  a  judge  interested  in  the  estate  are 
void.- 

The  question  arises  quite  frequently  whether  it  is  neces- 
sary, in  a  proceeding  in  probate,  that  the  petition  or  other 
pleading  calling  for  the  exercise  of  jurisdiction  shall  al- 
lege all  of  the  facts  necessary  to  give  the  court  jurisdiction 
to  proceed.  Of  course,  where  the  court  is  held  to  be  one 
of  special  and  inferior  jurisdiction,  this  is  necessary.^  And 
so  where,  although  the  court  is  one  of  record,  and  of  gen- 
eral jurisdiction,  but  the  particular  act  to  be  done  is  special 
and  statutory,  and  does  not  fall  within  the  general  powers 
of  the  court.*  It  is  otherwise  where  the  court  is  one  of 
general  jurisdiction,  and  the  act  to  be  done  falls  within  its 
general  powers  and  is  not  special.^  General  principles  af- 
fecting this  subject  have  received  attention  in  earlier  sec- 
tions of  this  work,^  and  the  subject  will  be  more  fully  con- 
sidered, as  applicable  to  proceedings  of  probate  courts, 
hereafter.^ 

In  some  of  the  states  statutes  have  been  enacted  provid- 
ing, in  effect,  that  a  failure  to  allege  jurisdictional  facts 
shall  not  be  taken  advantage  of  except  upon  appeal,  or 
other  direct  attack.  Therefore  where  the  court  has  juris- 
diction of  the  general  subject-matter  its  jurisdiction  over 
the  particular  proceeding  can  not  be  questioned  collater- 
ally on  the  ground  that  the  jurisdictional  facts  have  not 

^  Jefferson  R.  Co.  v.  Swayne,  26  Ind.  477. 

2  Sigourney  v.  Sibley,  22  Pick.  507 ;  33  Am.  Dec.  762 ;  ante,  sec.  62. 

3  Ante,  sec.  23,  p.  144 ;  sec.  25,  p.  155.  *  Ante,  sees.  22,  23,  25. 

*  Ante,  sees.  20,  22,  23,  25,  p.  157.  «  Ante,  sees.  11,  22,  23,  25. 

'  Post,  sec.  76. 


PROBATE    JURISDICTION.  455 

been  alleged  in  the  petition.^  Such  a  statute  really  places 
probate  courts  on  the  footing  of  courts  of  general  juris- 
diction in  all  matters,  the  general  subject-matter  of  ■v^hich 
is  within  their  jurisdiction,  as  respects  a  collateral  attack.^ 
And,  as  to  special  proceedings,  places  their  judgments  and 
orders  above  those  of  superior  courts  in  such  proceedings 
not  protected  by  such  a  statutory  provision,  because  the 
judgments  and  decrees  of  such  courts,  in  special  and  stat- 
utory proceedings,  are  subject  to  collateral  attack  under 
such  circumstances.^ 

Where  a  statute  authorizes  the  appointment  of  persons 
having  certain  designated  qualifications  as  executors  or 
administrators,  the  finding  of  the  fact  that  an  applicant 
possesses  such  qualifications  is  conclusive  as  against  a  col- 
lateral attack.*  But  it  has  been  held,  under  a  statute 
authorizing  the  appointment  of  a  stranger  where  the  rela- 
tions of  the  deceased  made  no  claim  to  administer  within 
a  designated  time,  that  letters  granted  to  a  stranger,  before 
the  expiration  of  the  time  limited,  are  null  and  void.^ 

The  court  granting  letters  of  administration  does  not 
necessarily  acquire  exclusive  jurisdiction  of  all  matters 
_growing  out  of  the  settlement  of  the  estate,  as  against  a 
court  of  the  same  jurisdiction  in  another  county  in  the 
state.  For  example,  it  is  held  that  proceedings  for  the 
sale  of  real  estate  may  be  had  in  the  court  of  the  county 
in  which  the  land  is  situate,  although  letters  of  administra- 
tion of  the  estate  were  granted  in  another  county  and  the 
settlement  of  the  estate  is  pending  there,®  and  that  the 
jurisdiction  in  such  cases  is  concurrent  in  the  courts  of 
the  two  counties.^ 

In  an  action  to  contest  a  will,  it  is  held  that  one  or  the 

^  Murzynowski  v.  Delaware,  L.  &  W.  R.  Co.,  15  X.  Y.  Supl.  841 ; 
Beams  v.  Gould,  77  N.  Y.  455. 

^  Beams  v.  Gould,  77  N.  Y.  455;  Harrison  ?•.  Clark,  87  X.  Y.  572. 

^  Ante,  sec.  20 ;  post,  sees.  68,  76. 

*  Caujolle  V.  Curtiss,  13  Wall.  465;  Berney  v.  Drexel,  12  Fed.  Rep.  .393. 

^  Rinehart  v.  Rinehart,  27  N.  J.  Eq.  475. 

^  Post,  sec.  76 ;  "Williamson  v.  Miles,  25  Ind.  55 ;  Jones  v.  Levi,  72 
Ind.  586. 

'  Jones  V.  Levi,  72  Ind.  586. 


456      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

other  of  the  facts  above  mentioned,  as  necessary  to  give 
jurisdiction,  must  be  alleged  in  the  complaint.^  But  that 
proof  of  the  fact  will  obviate  the  defect  on  appeal.^ 

Letters  of  administration  on  the  same  estate  may  be  is- 
sued and  acted  upon  in  different  states  at  the  same  time, 
one  by  virtue  of  the  domicil  of  the  deceased  within  the 
state,  and  the  other  founded  upon  the  presence  of  prop- 
erty within  the  jurisdiction  of  the  court.^ 

In  such  cases  both  letters  are  valid,  each  administrator 
is  subject  to  the  jurisdiction  and  orders  of  the  court  ap- 
pointing him,  there  is  no  privity  between  the  two,  each 
must  administer  so  much  of  the  estate  as  is  within  the 
jurisdiction  of  the  court  appointing  him,  and  the  letters 
granted  where  property  is  situated  are  generally  held  to 
be  ancillary  to  those  granted  at  the  place  of  domicile.^ 
Buc  where  valid  letters  of  administration  upon  an  estate 
have  been  granted  the  grant  of  second  letters  by  the  same 
court  is  void.^ 

Where  letters  of  administration  have  been  issued,  such 
grant  can  not  be  attacked  in  a  collateral  proceeding  on  the 
ground  that  the  alleged  intestate  left  a  will.^ 

Independent  of  some  statute  to  the  contrary,  letters 
granted  in  one  state  have  no  force  in  another  state. ^  But 
statutes  authorizing  administrators  appointed  in  another 

^  Thomas  v.  Wood,  61  Ind.  132. 

2  McCord  V.  Thomson,  92  Ind.  565. 

3  Quidort  v.  Pergeaux,  18  N.  J.  Eq.  472 ;  Mathews  v.  Douthitt,  27  Ala. 
273 ;  62  Am.  Dec.  765 ;  Coltart  v.  Allen,  40  Ala.  155 ;  88  Am.  Dec.  757. 

"  The  doctrine  of  the  common  law  in  force  in  this  state  is,  that  when 
the  probate  court  has  granted  letters  of  administration  to  a  person  en- 
titled to  and  capable  of  discharging  the  trust,  it  can  not  make  any  new 
appointment  of  an  administrator  of  the  same  estate  until  the  occurrence 
of  one  of  those  events  or  disabilities  which,  either  temporarily  or  per- 
petually, vacates  the  office — as  the  death  or  resignation  of  the  party,  the 
repeal  of  his  authority,  etc.  If  it  makes  any  such  new  appointment  be- 
fore the  occurrence  of  any  one  of  such  events  or  disabilities,  such  new 
appointment  is  totally  void.  Griffith  v.  Frazier,  8  Cranch,  9 ;  Justices 
V.  Selman,  6  Ga.  432."  Mathews  v.  Douthitt,  27  Ala.  273;  62  Am.  Dec. 
765. 

*  Quidort  v.  Pergeaux,  18  N.  J.  Eq.  472. 

^  Fletcher  v.  Saunders,  7  Dana,  345 ;  32  Am.  Dec.  9a 


PROBATE   JURISDICTION.  457 

state  to  sue  in  the  states  ot  their  enactment  are  quite 
comnaon. 

The  probate  of  a  will  is  usually  held  to  be  conclusive, 
within  the  state,  as  to  its  validity,  as  has  been  shown 
above.  It  is  in  the  nature  of  a  proceeding  in  rem.  estab- 
lishes the  status  of  the  Avill  which,  unless  avoided  in  some 
mode  prescribed  by  law,  binds  and  concludes  all  the 
world.' 

It  is  sometimes  held  to  be  conclusive  as  to  personal 
property  and  presumptive  as  to  real  estate." 

At  common  law,  an  ex  parte  probate  of  a  will  had  no 
conclusive  efltect  as  to  land  devised,  and  as  to  personalty 
it  was  revocable  by  the  court  that  granted  it  or  by  some 
other  court  of  original  jurisdiction.^  It  was  otherwise 
■where  the  probate  was  in  solemn  form  and  upon  notice.^ 

The  probate  is  no  proof  of  the  execution  of  a  will  in 
conformity  with  the  laws  of  another  state.*  It  proves  the 
validity  of  the  will,  so  far  as  it  afiects  property  within  the 
state,  and  would  be  sufficient  for  that  purpose  in  another 
state.  But  a  decree  that  it  was  executed  in  conformity  to 
the  laws  of  one  state  does  not  prove,  or  tend  to  prove,  its 
execution  in  the  manner  required  by  the  laws  of  some 
other  state,  no  matter  where  the  question  arises.^  There- 
fore, so  far  as  it  is  attempted  to  be  used  for  the  pur- 
pose of  atfecting  the  title  to  property  within  any  state, 
it  must  be  probated  in  such  state  unless  other  proof  of  its 
due  execution  is  permitted  by  the  laws  of  the  state.^ 

The  question  as  to  the  conclusiveness  of  the  probate  of 

'  Freeman  on  Judg.,  3d  ed.,  sees.  319a,  608;  State  v.  McGlynn,  20  Cal. 
234;  81  Am.  Dec.  118;  Schultz  v.  Schultz,  10  Grattan,  358;  60  Am.  Dec. 
335,353;  Redmond  v.  Collins,  4  Dev.  430;  27  Am.  Dec.  208. 

''  Holliday  i.  Ward,  19  Pa.  St.  485;  57  Am.  Dec.  671. 

3  Sneed  r.  Ewing,  5  J.  J.  Mar.  (Ky.)  460;  22  Am.  Dec.  41. 

*  Robertson  v.  Pickrell,  109  U.  S.  608;  3  Sup.  Ct.  Rep.  407;  Sneed  v. 
Ewing,  5  J.  J.  Mar.  (Ky.)  460;  22  Am.  Dec.  41. 

=  Robertson  v.  Pickrell,  109  U.  S.  608 ;  3  Sup.  Ct.  Rep.  407. 

« Robertson  v.  Pickrell,  109  U.  S.  608;  3  Sup.  Ct.  Rep.  407;  McCor- 
mick  V.  Sullivant,  10  Wheat.  192;  Street  v.  Augusta,  75  Am.  Dec.  722, 
note. 


458     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

a  will  gives  rise  to  the  further  question,  whether  the  pro- 
bate court  itself  has  power  to  vacate  its  own  proceedings 
for  such  probate.  This  depends  upon  the  other  question, 
already  considered,  whether  probate  courts  are  or  are  not 
courts  of  general  jurisdiction.  If  they  are,  of  course  they 
have  control  over  their  own  decrees,  and  may  vacate  them, 
and  may,  therefore,  revoke  the  probate  of  a  will.  And 
for  this  reason  it  is  generally  held  that  they  may  do  so.' 

The  power  to  revoke  is  incidental  to  the  power  to  pro- 
bate, and  may  be  exercised  without  express  statutory  au- 
thority.^ And,  for  the  reason  that  the  power  exists  in  the 
the  probate  courts,  courts  of  equity  decline  to  entertain 
jurisdiction  to  revoke  the  probate  of  wnlls  for  fraud  or 
mistake.^ 

But  it  is  held  that  a  statute  providing  that  the  judgment 
of  a  court  of  competent  jurisdiction  may  be  set  aside  for 
fraud,  accident,  or  mistake,  confers  upon  a  court  of  chan- 
cery the. power  to  set  aside  a  judgment  of  a  probate  court 
procured  by  fraud.* 

The  power  of  a  court  of  chancery  to  set  up  a  will  which 
has  been  lost,  suppressed,  or  destroyed,  is  very  strongly 
maintained  in  some  cases,^and  denied  with  equal  positive- 
ness  by  others.*^ 

The  denial  of  such  jurisdiction  rests  upon  the  claim 
that  the  power  to  set  up  and  probate  a  lost  or  spoliated 
wnll  is  strictly  probate  jurisdiction.  And  this  seems  to  be 
the  correct  rule  on  the  subject,  and  one  in  harmony  with 
the  general  principles  relating  to  the  power  to  probate 
wills.     It  is  difficult  to  see  why  the  power  to  probate  such 

1  Post,  sec.  84;  Waters  v.  Stickney,  12  Allen,  1 ;  90  Am.  Dec.  122,  136, 
note;  Gaines  v.  Hennen,  24  How.  553. 

''  Waters  v.  Stickney,  12  Allen,  1 ;  90  Am.  Dec.  122,  136,  note. 

*  Waters  v.  Stickney,  12  Allen,  1 ;  90  Am.  Dec.  122,  136,  note  ;  Freeman 
on  Judg.,  sec.  608;  Gaines  v.  Chew,  2  How.  619,  644;  Kieley  v.  McGlynu, 
21  Wall  503;  State  v.  McGlynn,  20  Cal.  234;  81  Am.  Dec.  118;  Archer 
V.  Meadows,  33  Wis.  166 

*  Wallace  v.  Walker,  37  Ga.  265;  92  Am.  Dec.  70. 

*  Buchanan  v.  Matlock,  8  Humph.  (Tenn.)  390;  47  Am.  Dec.  622. 

«  Morningstar  v.  Selby,  15  Ohio,  345;  45  Am.  Dec.  579;  Matter  of  Sin- 
clair's Will,  5  Ohio  St.  291. 


PROBATE    JURISDICTION.  459 

a  will  should  not  fall  within   the  jurisdiction  in  probate 
matters  as  well  as  the  probate  of  one  that  is  produced. 

In  some  of  the  states,  provision  is  made  for  the  contest 
of  a  will,  within  a  limited  time  after  it  is  probated,  by  pro- 
ceedings brought  for  that  purpose.  Such  a  proceeding  is 
a  direct  attack  upon  the  order  probating  the  will,  the  first 
probate  being  in  the  nature  of  the  probate  in  commoir 
form,  and  the  second  in  the  nature  of  a  proceeding  in 
equity  and  similar  to  the  probate  in  solemn  form  in  Eng- 
land.i 

It  is  held  that,  under  such  proceedings,  the  court  has  no 
jurisdiction  to  construe  the  will  in  controversy,  and  that 
the  only  question  to  be  determined  is  will  or  no  will.^ 

Notice  to  the  heirs  and  others  interested  is  necessary  in 
the  proceeding  to  contest,  and  any  one  not  notified,  or  ap- 
pearing, may  assert  his  rights  under  the  will,  as  originally 
probated,  notwithstanding  a  decree  in  the  subsequent  pro- 
ceeding declaring  the  will  invalid.^  And  provision  is 
sometimes  made  by  statute  for  the  contest  of  a  will,  after 
probate  in  the  probate  court,  by  bill  in  a  court  of  chan- 
cery.^ 

A  will  can  not  be  probated  before  the  death  of  the  tes- 
tator, and  a  statute  authorizing  such  a  probate  is  inoper- 
ative and  not  binding  upon  the  courts.^ 

So  it  is  held  that  where,  at  the  time  of  the  death  of  the 
testator,  there  was  no  law  providing  for  the  probate  of 
wills,  a  probate  court  has  no  jurisdiction  to  probate  the 
same  under  a  statute  subsequently  enacted,  unless  the 
statute  is  made  retrospective  by  its  express  words.®     And 

1  McArthur  v.  Scott,  113  U.  S.  340;  5  Sup.  Ct.  Rep.  652,  664;  Hears  v. 
Mears,  15  Ohio  St.  90 ;  Redmond  v.  Collins,  4  Dev.  (N.  Car.)  430 ;  27  Am. 
Dec.  208. 

■'McArthur  v.  Scott,  113  U.  S.  340;  5  Sup.  Ct.  Rep.  652;  Mears  v. 
Mears,  15  Ohio  St.  90,  96. 

3  Holt  V.  Lamb,  17  Ohio  St.  374;  McArthur  v.  Scott,  113  U.  S.  340;  5 
Sup.  Ct.  Rep.  652. 

*  Dower  v.  Seeds,  28  W.  Va.  113,  134;  57  Am.  Rep.  646. 

^  Lloyd  V.  Wayne  Circuit  Judge,  56  Mich.  236 ;  23  N.  W.  Rep.  28. 

^  Grimes  v.  Norris,  6  Cal.  621 ;  65  Am.  Dec.  545,  547,  note ;  Tevis  v. 


460       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

the  probate  of  a  will  is  not  necessary  to  its  validity  unless 
made  so  by  statute.' 

The  question  often  arises  whether  the  notice  necessary 
to  vest  the  court  with  jurisdiction  has  been  given,  and 
whether  a  finding  by  the  court  that  such  notice  was  given 
is  conclusive  on  a  collateral  attack.  The  general  rule  on 
the  subject  is  that  a  finding  of  notice  by  the  court  is  con- 
clusive when  its  jurisdiction  is  brought  in  question  collat- 
erally in  the  state  in  which  the  court  is  situate.^  But 
cases  may  be  found  which  hold  to  the  contrary.^ 

The  power  to  appoint  guardians  is  usually  confined  to  * 
minors  or  other  persons  residing  within  the  jurisdiction 
of  the  court.     But  it   may  be  extended  to  non-residents 
having  property  within  such  jurisdiction.* 

By  an  order  of  final  distribution  and  discharge  of  the 
administrator  the  jurisdiction  of  the  court  is  exhausted.^ 
And  such  order  when  made  by  a  competent  court  having 
jurisdiction  is  conclusive  as  against  a  collateral  attack.^ 

The  probate  of  a  will  taken  within  the  county,  or  other 
territorial  jurisdiction  of  the  court,  but  not  at  the  county 
seat,  is  not  void,^ 

It  is  unnecessary,  in  this  connection,  to  consider  the  neces- 
sity of  notice  in  probate  proceedings  to  give  the  court 
jurisdiction.  The  general  principle  that  notice  of  some 
character  is  necessary  to  give  jurisdiction  is  applicable  to 
this  class  of  proceedings.^  And  notice  is  necessary,  al- 
though no  provision  is  made  for  it  by  the  statute  author- 
izing the  proceeding.* 

Pitcher,  10  Cal.  465;  McNeil  i'.  Congregational  Society,  66  Cal.  105,  108; 
4  Pac.  Rep.  1096. 

^  Grimes  v.  Norris,  6  Cal.  621  ;  65  Am.  Dec.  545 ;  Adams  v.  Norris,  23 
How.  353. 

2  Ante,  sec.  23,  pp.  122,  145,  146. 

=*  Ante,  sec.  23 ;  Wise  v.  Williams,  88  Cal.  30,  34 ;  25  Pac.  Rep.  1064. 

*  Davis  V.  Hudson,  29  Minn.  27;  11  N.  W.  Rep.  136. 

^  Lowry  v.  McMillan,  35  Miss.  147 ;  72  Am.  Dec.  119. 

«  Le  Grange  v.  Ward,  11  Ohio,  258. 

'  See  ante,  sees.  11,  13,  20,  23,  25,  32,  33  •  post,  sec.  76;  Root  v.  McFerrin, 
37  Miss.  17 ;  75  Am.  Dec.  49. 

^  Chase  v.  Hathaway,  14  Mass.  222. 


SPECIAL  CASES  AND  PROCEEDINGS.  461 

68.  Special  cases  and  proceedings. — The  builders  of  some 
of  the  codes  of  procedure  in  the  states  seemed  to  fear  that 
the  "actions"  of  such  codes  wo  ukl  not  coverall  of  the 
civil  remedies  that  might  be  sought  in  the  courts.  To 
avoid  such  a  contingency  it  is  provided  that  remedies  shall 
be  divided  into  two  classes,  "  actions  "  and  "  special  pro- 
ceedings." ^     An  action  is  defined.^ 

The  use  of  the  word  "  ordinary  "  in  the  code  definition 
of  an  action  would  seem  to  have  caused  the  whole  trouble.^ 

A  special  proceeding  has  not  been  defined  by  the  codes. 
After  defining  an  action  every  other  remedy  is  declared  to 
be  a  special  proceeding.*  That  is  to  say,  in  effect,  "  every 
prosecution  in  a  court  of  justice,  by  a  party  against  an- 
other party,  for  the  enforcement  or  protection  of  a  right, 
the  redress  or  prevention  of  a  w^rong,  or  the  punishment 
of  a  public  offense,  other  than  an  ordinary  prosecution,  is  ex- 
traordinary, and  is  a  special  proceeding."^  Thus  we  have 
fastened  upon  the  law  of  jurisdiction  and  procedure  an  ex- 
crescence that  has  caused  courts  and  lawyers  much  useless 

1  Code  Civ.  Pro.  Cal.,  sec.  21. 

^  "  The  word  '  action  '  signifies  an  ordinary  prosecution,  in  a  court  of 
justice,  by  a  party  against  another  party,  for  tlie  enforcement  or  protec- 
tion of  a  right,  the  redress  or  prevention  of  a  wrong,  or  the  punishment 
of  a  public  offense."  Throop's  Code  Civ.  Pro.  N.  Y.,  sec.  3333 ;  Code 
Civ.  Pro.  Cal.,  sec.  22. 

3  People  V.  Lewis,  28  How.  Pr.  159,  161 ;  People  v.  Main,  20  N.  Y.  434. 

*  "  Every  other  prosecution  by  a  party  for  either  of  tlie  purposes  speci- 
fied in  the  last  section  is  a  special  proceeding."  Throop's  Code  Civ.  Pro. 
N.  Y.,  sec.  3334.  See  also  Code  Civ.  Pro.  Cal.,  sec.  23.  These  codes  are 
cited  as  samples. 

*  In  California  one  "  part "  of  the  code  is  devoted  to  special  pro- 
ceedings of  a  civil  nature.  Under  this  division  are  included  writs  of  re- 
view, writs  of  mandate,  contests  of  elections,  summary  proceedings  in- 
cluding confession  of  judgment  without  action,  submitting  a  contro- 
versy witliout  action,  discharge  of  persons  imprisoned  on  civil  process, 
and  summary  proceeding  for  obtaining  possession  of  real  property  in 
certain  cases  including  forcible  entry  and  detainer ;  enforcement  of  liens 
including  mechanics'  liens  and  liens  for  salaries  and  wages,  contempts, 
voluntary  dissolution  of  partnerships,  eminent  domain,  proceedings  to 
recover  escheated  estates,  change  of  names,  arbitrations,  and  proceedings 
in  probate  courts,  including  the  settlement  of  guardianships.  Code  Civ. 
Pro.  Cal.,  Part  III. 


462      COMMON  LAAV,  EQUITY,  AND  STATUTORY  JURISDICTION. 

trouble  and  litigant  parties  much  unnecessary  expense,  de- 
lay, and  injustice,  and  has  brought  into  the  law  of  the 
states  in  which  these  code  provisions  were  enacted  much 
unnecessary  uncertainty.  The  courts  have  been  endeavor- 
ing ever  since  the  codes  were  enacted  to  define  special  pro- 
ceedings, or  ascertain  and  mark  out  the  dividing  line  be- 
tween such  proceedings  and  ordinary  actions,  but  with  very 
indifl'erent  success.^ 

In  some  of  the  cases,  the  distinction  between  an  action 
and  a  special  proceeding  is  held  to  be  that  a  proceeding 
instituted  by  summons  and  complaint  is  an  action,  and 
that  every  other  remedy  is  a  special  proceeding.^  But  this 
would  include  proceedings  under  all  of  the  well  known 
common-law  writs  and  many  other  actions  that  only  differ 
from  those  in  which  a  summons  is  issued  in  the  manner 
of  giving  notice,  and  a  change,  by  statute,  of  the  manner 
of  giving  notice;  might,  under  such  a  distinction,  convert 
any  action  into  a  special  proceeding.  It  is  obvious  that 
the  division  between  the  two  does  not  lie  there. 

The  mind  would  naturally  tend  to  the  conclusion  that 
the  ordinary  action  was  intended  to  include  all  common- 
law  and  equity  remedies  that  were  being  enforced  by 
courts  of  law  and  equity  at  the  time  the  constitution  and 
statutes  dividing  the  proceedings  into  actions  and  special 
cases  and  special  proceedings  went  into  effect.  But  this 
has  been  emphatically  denied  in  a  case  in  which  a  suit  for 
the  foreclosure  of  a  mortgage  was  held  to  be  a  special 
case.^ 

In  some  of  the  cases  the  position  is  taken  that  by  the 
term  special  cases  used  in  some  of  the  constitutions  au- 
thorizing the  legislature  to  confer  jurisdiction  on  inferior 
courts,  enumerated  cases  was  intended;  and  that  the  legis- 

1  Belknap  v.  Waters,  11  N.  Y.  477;  Arnold  v.  Rees,  18 N.  Y.  57 ;  Double- 
day  V.  Heath,  16  N.  Y.  80;  Appeal  of  Houghton,  42  Cal.  35;  McNeil  v. 
Borland,  23  Cal.  144;  Haviland  v.  White,  7  How.  Pr.  154;  Matter  of 
Cooper,  22  N.  Y.  67,  86 ;  Boyd  v.  Bigelow,  14  How.  Pr.  511 ;  Extension  of 
the  Bowery,  12  How.  Pr.  97;  Ricks  v.  Reed,  19  Cal.  551,  574. 

2  Belknap  v.  Waters,  11  N.  Y.  477 ;  Hall  v.  Hall,  78  N.  Y.  535,  542. 
^  Arnold  v.  Rees,  18  N.  Y.  57. 


SPECIAL  CASES  AND  PROCEEDINGS.  463 

lature  may,  by  specially  designating  the  cases  of  which 
such  courts  may  take  jurisdiction,  convert  them  all  into 
special  cases,  and  thereby  give  the  inferior  courts  jurisdic- 
tion of  the  whole  mass  of  judicial  business,  legal  and 
equitable.^  But  this  is  certainly  not  the  generally  accepted 
meaning  of  the  term,  as  will  appear  a  little  further  on  in 
this  section. 

The  cases  on  the  subject  alone  are  convincing  to  estab- 
lish the  fact  that  they  are  wholly  at  variance  with  each 
other  and  that  a  special  case  or  a  special  proceeding  is  an 
unknown  quantity,  and,  therefore,  can  neither  be  defined 
nor  accurately  described.  The  division  of  actions  thus 
made,  or  attempted  to  be  made,  is  worse  than  superfluous, 
because  it  has  brought  about  many  distinctions  between 
the  two  classes  of  cases  respecting  the  jurisdiction  of 
courts  over  them,  which  would  never  have  existed  under 
the  codes  if  the  term  "  action  "  or  "  civil  action,"  as  it  is 
termed  in  some  of  the  codes,  had  been  so  defined  as  to 
cover  all  proceedings  in  a  court  of  justice  whether  or- 
dinary or  extraordinary. 

The  subject  of  special  cases  and  proceedings  becomes 
important  in  this  connection  only  because  the  courts  have 
maintained  that  because  they  are  special  and  extraordi- 
nary, the  courts,  when  exercising  jurisdiction  over  them, 
are  courts  of  special  jurisdiction,  that  their  power  to  act 
must  aflarmatively  appear  by  their  records,  and  that  no 
presumptions  will  be  indulged  in  favor  of  their  jurisdic- 
tion when  acting  in  such  proceedings.^ 

This  is  a  distinction  that  should  have  no  place  in  the 
law,  and  the  sooner  it  is  wholly  and  entirely  repudiated 
the  better.  But  we  must  deal  with  the  law  as  it  is  and 
not  as  it  is  believed  it  should  be.  It  is  one  that  is  not  ad- 
hered to  in  many  cases  and  proceedings  that  are  wholly 
statutory.  This  is  particukirly  noticeable  in  probate  pro- 
ceedings which  are  classed  as  special  in  the  codes.  Courts 
of  probate  are  generally,  but  not  always,  held  at  the  pres- 

'  Arnold  v.  Rees,  18  N.  Y.  57 ;  People  v.  Main,  20  N.  Y.  434. 
»  Ante,  sees.  20,  23,  25 ;  Chollar  Min.  Co.  v.  Wilson,  G6  Cal.  374 ;  5  Pac. 
Rep.  670. 


464      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

ent  day  to  be  courts  of  general  jurisdiction  in  the  trans- 
action of  probate  business,  but  a  different  rule  is  main- 
tained in  some  of  the  states.^ 

It  is  further  maintained  in  some  of  the  cases  that  in  the 
case  of  statutory  proceedings  great  strictness  is  required, 
and  the  steps  necessary  to  vest  the  court  with  jurisdiction, 
including  the  giving  of  notice,  must  appear  to  have  been 
taken  in  strict  compliance  with  the  terms  of  the  statute.^ 
But  this  doctrine,  like  the  other,  is  purely  arbitrary  and 
artificial.  It  has  no  basis  in  reason.  There  should  be  no 
difference  in  this  respect  between  a  remedy  given  and  reg- 
ulated by  statute,  and  one  that  existed  at  common  law. 
And  the  rule  has  very  justly  been  confined  to  summary  or 
extraordinary  ex  parte  proceedings.  In  other  cases,  not 
summary  in  their  nature,  a  substantial  compliance  with 
the  statute  is  all  that  is  necessary.^  And  where  the  juris- 
diction of  the  court  in  this  class  of  proceedings  depends 
upon  a  fact  or  facts  to  be  found  by  the  court,  a  finding 
that  such  facts  exist  is  conclusive,  on  collateral  attack.* 
There  are  cases  holding,  however,  that  this  is  not  so  where 

^  Ante,  sec.  67. 

2  Ante,  sec.  20;  Bloom  r.^Burdick,  1  Hill,  130;  37  Am.  Dec.  299. 

3  Ante,  sec.  20,  p.  94;  Post,  sec.  76;  AVhite  v.  Conover,  5  Blkf.  (Ind.) 
462;  Morrow  v.  Weed,  4  la.  77;  66  Am.  Dec.  122;  Bowman  v.  Venice, 
etc.,  Ry.  Co.,  102  111.  472;  Kreiss  v.  Hotaling,  96  Cal.  617,  620;  31  Pac. 
Eep.  740 ;  Hill  v.  Board  of  Supervisors,  95  Cal.  239 ;  30  Pac.  Rep.  385. 

"  But  it  is  urged  with  earnestness,  that  this  being  a  statutory  proceed- 
ing, great  strictness  is  required.  It  is  true  it  is  a  statutory  proceeding, 
but  it  is  not  a  summary  ex  parte  proceeding,  where  the  parties  whose 
rights  are  to  be  affected  have  no  opportunity  to  be  heard.  Applications 
for  partition  of  lauds,  and  the  assignment  of  dower,  and  the  action  of 
replevin,  are  statutory,  and  yet  no  one  thinks  of  insisting  upon  the 
strictness  that  is  applied  to  ex  parte  proceedings.  The  fact  that  a  pro- 
ceeding is  statutory  is  not  enough  to  require  the  application  of  the  rigid 
rules  of  strictness,  but  it  only  applies  in  summary  and  ex  parte  cases, 
where  the  person  whose  rights  are  to  be  aflfected  is  not  a  party.  Such  is 
not  the  case  here,  as  owners  and  those  having  an  interest  are  required 
not  only  to  be  made  parties,  but  to  be  served  with  process."  Bowman 
r.  Venice,  etc.,  Ry.  Co.,  102  111.  472,  475. 

*  Ante,  sees.  23,  25;  In  re  Grove  street,  61  Cal.  438;  Humboldt  Co.  v. 
Dinsmore,  75  Cal.  604;  17  Pac.  Rep.  710;  Ex  parte  Noble,  96  Cal.  362; 
31  Pac.  Rep.  224;  Ex  parte  Sternes,  77  Cal.  156,  162 ;  19  Pac.  Rep.  275. 


J 


SPECIAL  CASES  AND  PROCEEDINGS.  465 

a  petition  is  required  to  be  filed,  signed  by  a  certain  num- 
ber of  persons  possessing  certain  designated  qualifications, 
and  the  court  has  recited  in  its  records  that  the  petition 
was  so  signed,  and  has  proceeded  to  act  upon  it.^  Un- 
doubtedly a  finding  of  this  kind  is  subject  to  attack  in  a 
direct  proceeding,  but  there  is  no  apparent  reason  why  a 
finding  of  such  a  fact,  necessary  to  give  the  court  jurisdic' 
tion,  should  not  be  conclusive  on  a  collateral  attack  as 
well  as  a  finding  of  the  existence  of  any  other  fact  neces- 
sary to  give  jurisdiction. 

The  rules  with  reference  to  these  special  cases  and  pro- 
ceedings, as  respects  the  jurisdiction  of  courts  over  them, 
are  the  same,  practically,  as  those  afi:ecting  the  jurisdic- 
tion of  inferior  courts,  which  have  been  considered.^  The 
subject  will  also  receive  further  attention  when  we  come  to 
consider  the  subject  of  sales  of  real  estate.^  The  principal 
object  of  this  section  is  to  direct  attention  to  these  special 
cases  and  proceedings,  and  to  ascertain,  as  nearly  as  we 
can,  what  are  included  within  them  without  repeating 
what  has  been  said  elsewhere  with  reference  to  the  juris- 
diction of  the  courts  over  them. 

Taking  the  State  of  California  as  a  sample  of  this  kind 
of  legislation  and  its  efl[ect,  we  have  a  very  large  body  of 
its  laws,  and  the  most  important  of  its  writs,  and  writs 
that  were  well  known  at  common  law,  and  the  whole  body 
of  its  probate  law  and  procedure  classed  in  its  code  as 
special  proceedings  and  subjected  to  the  pernicious  doc- 
trine that  no  presumption  will  prevail  to  uphold  the  juris- 
diction of  the  courts  therein,  because  the  proceedings  are 
statutory  and  special.  Happily,  the  courts  have  not  classed 
all  of  these  proceedings  as  special,  but  have  held  many  of 
them  to  be  included  in  the  code  definition  of  an  action.^ 

1  Ante,  sec.  23,  p.  126 ;  Kahn  v.  Board  of  Supervisors,  79  Cal.  388,  396; 
21  Pac.  Rep.  849 ;  In  re  Madera  Irrigation  District,  92  Cal.  296,  331 ;  28 
Pac.  Rep.  272. 

'  Ante,  sees.  20,  23,  25.  '  Post,  sec.  76. 

*  People  V.  County  Judge,  13  How.  Pr.  398;  People  v.  Lewis,  28  How. 
Pr.  159;  Lord  v.  Dunster,  79  Cal.  477;  21  Pac.  Rep.  865;  Brock  v.  Bruce, 
5  Cal.  279. 

30 


466     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

This  was  held  as  to  mechanics'  liens,'  and  writs  of  man- 
damus,^ actions  to  enforce  mechanics'  liens,^  and  statutory 
actions  in  the  nature  of  quo  warranto^ 

'  The  case  of  People  v.  County  Judge,  13  How.  Pr.  399, 400,  related  to 
a  mechanic's  lien  which,  as  has  been  shown,  is  classed  in  the  Cailfornia 
Code  as  a  special  proceeding.     In  that  case,  the  court  said  : 

"  Various  attempts  have  been  made  to  define  an  action.  The  last,  of 
which  I  am  aware,  is  that  made  in  framing  the  code.  Its  definition,  as 
now  amended,  is,  that  it  is  an  ordinarj'  proceeding  in  a  court  of  justice, 
by  which  one  party  prosecutes  another  for  the  enforcement  of  a  right, 
etc.  It  must  be  conceded,  I  think,  that  this  definition  is  not  remarkable 
for  its  perspicuity  or  distinctness.  I  suppose,  myself,  that  any  judicial 
proceeding  which,  if  conducted  to  a  termination,  will  result  in  a  judg- 
ment, is  an  action.  Hence  the  definition  of  a  judgment,  as  given  in  the 
245th  section  of  the  code,  is,  that  it  is  the  final  determination  of  the 
rights  of  the  parties  in  an  action. 

"There  are  various  modes  of  commencing  an  action.  In  courts  of 
record,  since  the  adoption  of  the  code,  it  must  be  by  summons,  served 
upon  the  party  in  some  one  of  the  modes  prescribed  or  by  voluntary 
appearance,  which  is  regarded  as  equivalent  to  a  personal  service. 
Other  modes  have  been  and  may  be  prescribed  in  particular  cases.  In 
justices'  courts  it  may  be  commenced  by  summons,  warrant,  or  attach- 
ment, or  in  whatever  mode  the  legislature  may  prescribe.  The  charac- 
ter and  effect  of  the  judgment  may  diflTer,  according  to  the  mode  in 
which  the  action  is  commenced ;  but,  if  the  proceeding  result  in  a  judg- 
ment, it  is  an  action. 

"Applying  this  test  to  the  adjudications  in  question,  there  can  be  no 
doubt  that  they  are  judgments  in  civil  actions.  It  is  true,  the  proceedings 
were  instituted  by  the  service  of  what  the  statute  calls  a  notice,  requir- 
ing the  defendant  to  appear,  etc.  But,  whether  the  defendant  appear 
according  to  the  exigency  of  this  notice  or  not,  the  court  proceeds  to 
dispose  of  the  case,  as  it  does  other  cases  after  due  service  of  process. 
If  the  defendant  does  not  appear,  judgment  upon  default  is  rendered 
against  him,  as  in  other  cases.  If  he  does  appear,  issue  is  to  be  joined, 
and  then  the  parties  proceed  to  trial  and  judgment  in  all  respects  as 
in  other  cases." 

*  People  V.  Lewis,  28  How.  Pr.  159,  172;  People  v.  Kern  County,  45 
Cal.  679. 

But  see  to  the  contrary,  Jacks  v.  Day,  15  Cal.  91 ;  People  v.  Schoon- 
maker,  19  Barb.  657. 

It  was  held  otherwise  in  the  special  term  where  the  ground  was  taken 


1 


'  Brock  V.  Bruce,  5  Cal.  279;  Williams  v.  Walton,  9  Cal.  142. 
But  see  to  the  contrary,  McNeil  v.  Borland,  23  Cal.  144  ;  Van  Winkle 
V.  Stow,  23  Cal.  458;  People  v.  County  Judge,  13  How.  Pr.  399. 
*  People  V.  Perry,  79  Cal.  105 ;  21  Pac.  Rep.  423. 


SPECIAL  CASES  AND  PROCEEDINGS.  467 

Many  other  well  kuown  cases  and  proceedings  must  fall 
within  this  class  under  the  principles  laid  down  in  these 
cases.  The  fact  that  a  certain  action  is  classed  in  the  code 
as  a  special  proceeding  does  not  make  it  so.  This  must 
be  determined  from  the  nature  and  character  of  the  pro- 
ceeding.^ The  following  have  been  held  to  be  special  pro- 
ceedings: A  motion  by  one  not  a  party  thereto  to  vacate' 
a  judgment  upon  confession;^  proceedings  for  the  parti- 
tion of  real  estate  under  a  statute  f  proceedings  for  the 
removal  of  officers  of  a  corporation  ;*  contest  of  elections  f 

by  the  court  that  mandamus  is  not  an  ordinary  proceeding,  and  there- 
fore not  within  the  code  definition  of  an  action. 

"  It  is  not  a  question  whether  a  proceeding  by  mandamus  when  it 
progresses  to  a  return,  may  or  may  not  be  in  some  sense  regarded  as 
'an  action '  or 'a  suit,' which  is  more  comprehensive  than  an  action, 
and  be  so  styled.  We  have  to  do  with  a  statutory  definition  and  divis- 
ion of  legal  remedies  into  'actions'  and  'special  proceedings.'  An  ac- 
tion is  declared  to  be  an  'ordinary  proceeding'  in  a  court  of  justice  by 
which  a  party  prosecutes,  etc.;  and  a  'special  proceeding'  embraces 
every  other  remedy  (Code,  sees.  2,  3).  Section  2  is  broad  enough  in 
terms,  when  speaking  of  the  purposes  and  objects  for  which  '  an  action  ' 
may  be  brought,  to  embrace  and  include  every  legal  proceeding.  For 
there  can  be  no  legal  process  or  procedure  except  '  for  the  enforcement 
of  a  right,  the  redress  or  prevention  of  a  wrong,  or  the  punishment  of  a 
public  offense.'  The  material  and  distinctive  part  of  the  definition 
is  the  words  'ordinary  proceeding.'  This  distinguishes  an  action  from 
an  extraordinary  or  special  proceeding,  and  restricts  the  term  to  a  pro- 
cedure which  would  answer  to  an  ordinary  action  at  law  or  suit  in  equity. 

"  Now  a  mandamus  is  not  an  ordinary  proceeding.  It  is  known  as  a 
high  prerogative  writ,  and  it  is  issued  in  the  exercise  of  an  extraordinary 
power,  and,  although  it  is  to  a  certain  extent  assimilated  to  an  action, 
it  is  not  made  an  action.  The  court  grants  the  writ  in  the  exercise  of 
its  general  supervisory  power,  and  to  prevent  a  failure  of  justice,  and 
when  there  is  no  other  specific  legal  remedy  for  a  legal  right.  It  is  not 
a  writ  of  right,  but  is  granted  in  the  discretion  of  the  court."  People  v. 
Lewis,  28  How.  Pr.  159,  161. 

•  Lord  I'.  Dunster,  79  Cal.  477 ;  21  Pac.  Rep.  865. 

But  see  on  this  point  Kundolf  v.  Thalheimer,  2  Kern,  593  ;  Arnold  v. 
Rees,  18  N.  Y.  57. 
^  Belknap  r.  Waters,  11  N.  Y.  477. 
'  Doubleday  r.  Heath,  16  N.  Y.  80. 

*  Chollar  v.' Wilson,  66  Cal.  374  ;  5  Pac.  Rep.  670. 

^  Saunders  v.  Haynes,  13  Cal.  145 ;  Stone  v.  Elkins,  24  Cal.  125;  Dorsey 
V.  Barry,  24  Cal.  449;  Keller  v.  Chapman,  34  Cal.  635. 
But  see  Lord  v.  Dunster,  79  Cal.  477 ;  21  Pac.  Rep.  865. 


468       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

taking  recognizance  of  bail  ;^  suit  to  foreclose  a  mort- 
gage;^ proceedings  for  the  grading  of  streets;^  and  to 
condemn  real  estate  for  public  or  quasi  public  purposes.* 
But  a  distinction  is  made  between  a  proceeding  to  con- 
demn land,  in  which  the  general  procedure  in  civil  actions 
must  be  resorted  to,  and  one  that  is  wholly  special.^ 
Actions  to  enforce  mechanics'  liens ;'^  proceedings  in  in- 
solvency;^ proceedings  in  aprobate  court  to  determine  heir- 
ship to  the  estate  of  a  decedent  f  and  an  application  for 
admission  as  an  attorney.^ 

The  different  kinds  of  actions  or  proceedings  held  by 
the  courts  to  belong  to  one  or  the  other  of  the  classes 
mentioned  are  given  as  tending  to  illustrate  the  distinction 
that  is  made  and  the  principles  upon  which  it  is  main- 
tained. But  the  cases  are  so  divided  on  many  of  the 
proceedings  passed  upon  as  to  render  them  of  but  little 
value. 

In  some  of  the  codes,  as  has  been  shown,  proceedings 
by  administrators  or  executors  for  the  sale  of  real  estate 
to  pay  debts  are  classed  as  special  proceedings.  But  it  is 
usually  held  that  they  are  proceedings  in  i^em,  and  when 
had  in  a  court  of  general  jurisdiction,  all  presumptions 
are  in  favor  of  the  jurisdiction  of  the  court.^**  And  pro- 
bate courts  are  usually  held  to  be  courts  of  general  juris- 
diction when  dealing  with  such  questions." 

In  some  of  the  constitutions,  the  legislature  is  author- 

'  People  V.  Main,  20  N.  Y.  434. 

"^  Arnold  r.  Rees,  18  N.  Y.  57. 

3  Appeal  of  Houghton,  42  Cal.  35. 

*  S.  P.  &  N.  R.  Co.  V.  Harlan,  24  Cal.  334. 

^  S.  F.  &  S.  J.  R.  R.  Co.  V.  Mahoney,  29  Cal.  112. 
«  McNeil  V.  Borland,  23  Cal.  144. 

But  see  to  the  contrary.  Brock  v.  Bruce,  5  Cal.  279 ;  Williams  v.  Wal- 
ton, 9  Cal.  142. 
'  In  re  Dennery,  89  Cal.  101 ;  26  Pac.  Rep.  639. 

*  In  re  Burton,  93  Cal.  459,  463;  29  Pac.  Rep.  36;  Smith  v.  Westerfield^ 
88  Cal.  374 ;  26  Pac.  Rep.  206. 

9  Matter  of  Cooper,  22  N.  Y.  67,  86. 

•"  Post,  sec.  76 ;  Grignon's  Lessee  v.  Astor,  2  How.  319,  338 ;  Florentine 
V.  Barton,  2  Wall.  210. 
"  Aide,  sees.  67 ;  post,  sec.  76. 


CRIMINAL  JURISDICTION.  469 

ized  to  confer  jurisdiction  upon  inferior  courts  in  "  special 
cases,"  which  has  given  rise  to  complications  and  uncer- 
tainties similar  to  those  growing  out  of  the  code  distinc- 
tion between  actions  and  special  proceedings.  It  has  been 
held  that  the  term  "  special  cases,"  as  thus  used,  was  not 
meant  to  include  any  class  of  cases  for  which  courts  of 
general  jurisdiction  had  always  supplied  a  remedy,  andT 
that  special  cases  must  be  confined  to  such  new  cases  as 
are  the  creation  of  statutes,  and  the  proceedings  under 
which  are  unknown  to  the  general  framework  of  courts 
of  common  law  and  equity.^  And  the  same  meaning  is 
given  to  the  term  "  special  proceeding  "  used  in  the  code.^ 
Under  a  provision  of  the  constitution  conferring  juris- 
diction upon  a  court  "of  all  special  cases  not  otherwise 
provided  for,"  such  courts  are  held  to  take  jurisdiction  of 
all  such  cases  that  are  not  otherwise  provided  for,  and  to 
hold  such  jurisdiction  until  given  to  some  other  court.^ 
So  in  case  of  a  similar  grant  of  jurisdiction  in  criminal 
cases.*  But  when  such  jurisdiction  is  conferred  by  the 
legislature  upon  some  other  tribunal,  it  becomes  a  case 
otherwise  provided  for,  and  the  jurisdiction  of  the  first 
named  court  is  taken  away  and  that  of  the  latter  becomes 
exclusive.* 

69.  Criminal  jurisdiction. — Jurisdiction  in  criminal 
cases  is  now  almost  entirely  governed  and  controlled  by 
express  statutory  and  constitutional  provisions.  This  is 
true  of  the  federal  as  well  as  the  state  courts. 

•Parsons  v.  Tuolumne  Co.  Water  Co.,  5  Cal.  43;  63  Am.  Dec.  76; 
Spencer  Creek  Water  Co.  v.  Vallejo,  48  Cal.  70;  Bixler's  Appeal,  59  Cal 
550. 

But  see  Arnold  v.  Rees,  18  N.  Y.  57. 

^  Appeal  of  Houghton,  42  Cal.  35. 

As  to  what  are  "  special  cases  "  within  the  meaning  of  these  constitu- 
tional provisions,  see  Spencer  Creek  Water  Co.  v.  Vallejo,  48  Cal.  70 ; 
Parsons  v.  Tuolumne  Co.  Water  Co.,  5  Cal.  43 ;  63  Am.  Dec.  76;  Bixler's 
Appeal,  59  Cal.  550. 

^  Spencer  Creek  Water  Co.  v.  Vallejo,  48  Cal.  70. 

*  Green  v.  Superior  Court,  78  Cal.  556;  21  Pac.  Rep.  307,  541. 


470     COMMON  LAW,  EQUITY,  AND  STATUTOKY  JURISDICTION. 

Jurisdiction  in  civil  and  in  criminal  cases  differs  mate- 
rially with  respect  to  the  foundation  of  territorial  juris- 
diction. In  civil  cases,  affecting  the  person,  the  residence 
of  the  defendant,  or  the  place  of  service  of  process,  de- 
termines, as  a  general  rule,  the  jurisdiction  of  the  court,' 
while  in  criminal  cases  the  place  where  the  crime  was 
committed  fixes  the  jurisdiction.^  It  makes  no  difference, 
therefore,  whether  the  accused  is  a  resident  or  citizen  of 
the  state  or  not.  An  alien  or  citizen  of  another  state  is 
subject  to  prosecution  and  punishment  for  a  violation  of 
the  laws  of  a  state  committed  therein.^  Nor  is  it  neces- 
sary that  the  party  committing  the  offense  should,  at  the 
time  of  the  commission  of  it,  be  actually  within  the  state. 
For  example,  a  party  in  one  state  may,  through  innocent 
agents,  commit  an  offense  against  the  laws  of  another 
state,  and  within  its  borders,  and  thus  render  himself 
amenable  to  prosecution  in  the  latter  state.*  So  he  may, 
while  in  one  state,  commit  an  offense  in  another  state  by 
other  means.^  But  one  can  not  be  punished  in  a  state 
where  a  crime  is  committed  who  was  merely  an  accessory 
before  the  fact  to  such  crime  in  another  state.^  He  is  an- 
swerable in  the  courts  of  the  state  in  which  he  acted.^ 
Nor  can  he  be  so  punished  where  the  offense  was  actually 
consummated  in  another  state,  although  some  act  consti- 
tuting a  part  of  the  offense,  or  making  the  offense  possible, 
was  committed  within  the  state.^ 

^  Ante,  sees.  13,  15. 

2  Campbell  v.  People,  109  111.  565 ;  50  Am.  Rep.  621 ;  In  re  Rosdeitscher, 
33  Fed.  Rep.  657. 

'  McDonald  v.  State,  80  Wis.  407;  50  N.  W.  Rep.  185;  State  v.  Chapin, 
17  Ark.  561 ;  65  Am.  Dec.  452. 

*  Johns  V.  State,  19  Ind.  421 ;  81  Am.  Dec.  408 ;  People  v.  Adams,  3 
Denio,  190;  45  Am.  Dec.  468;  State  v.  Chapin,  17  Ark.  561 ;  65  Am.  Dec. 
452 ;  Commonwealth  v.  Blanding,  20  Mass.  304 ;  15  Am.  Dec.  214. 

^  Johns  V.  State,  19  Ind.  421 ;  81  Am.  Dec.  408;  People  v.  Adams,  3 
Denio,  190;  45  Am.  Dec.  468;  Hatfield  v.  Commonwealth,  12  S.W.  Rep.  390. 

«  Johns  V.  State,  19  Ind.  421 ;  81  Am.  Dec.  408 ;  State  v.  Chapin,  17  Ark. 
561 ;  65  Am.  Dec.  452. 

'  State  V.  Chapin,  17  Ark.  561 ;  65  Am.  Dec.  4-52. 

»  Stewart  v.  Jessup,  51  Ind.  413;  19  Am.  Rep.  739;  State  v.  Shaeffer,  89 
Mo.  271 ;  1  S.  W.  Rep.  293. 


CRIMINAL  JURISDICTION.  471 

A  dilFerent  rule  is  laid  down  under  statutory  provisions 
in  some  of  the  states  with  respect  to  counties.^  Where 
no  statute  on  the  subject  prevails,  the  jurisdiction  exists 
where  the  crime  is  consummated  or  completed.^  The 
general  rule  is,  that  the  laws  of  a  state  can  have  no  extra- 
territorial force  or  effect.^  But  a  state  may  pass  laws  in 
regard  to  its  own  citizens  which  will  be  binding  and  oblig-' 
atory  upon  them  when  without  its  territorial  limits,  and 
make  the  violation  of  such  laws,  by  the  commission  of  an 
act  outside  of  the  state,  a  criminal  offense ;  and  the 
offender  may  be  punished  in  its  courts  whenever  found 
within  its  jurisdiction.* 

Proceedings  may  be  had  before  a  court  outside  of  the 
state  where  the  offense  was  committed  for  the  purpose  of 
apprehending  the  criminal  when  demanded  by  the  author- 
ities of  the  proper  state,  but  the  jurisdiction  in  such  cases 
is  ancillary  to  the  jurisdiction  of  the  courts  of  the  state 
where  the  offense  w^as  committed,  and  can  only  be  exer- 
cised in  order  to  bring  the  accused  within  the  jurisdiction 
of  the  court  having  authority  to  try  him.^  And  usually, 
as  between  the  states,  this  is  done  through  the  executive 
departments  without  the  aid  of  the  courts.  A  state  has 
power  to  provide  for  the  arrest  and  detention  of  one  ac- 
cused of  crime  in  advance  of  a  demand  made  by  the  proper 
state  authorities.^  But  such  a  statute  must  be  strictly  pur- 
sued or  the  accused  is  entitled  to  be  discharged.^ 

It  has  been  held  that  the  state  courts  have  no  jurisdic- 
tion over  an  offense  committed  within  the  state  by  one 
Indian  against  another  when  both  are  members  of  an 
organized  tribe,  having  laws  for  the  government  of  their 
own  internal  affairs,  which  tribe  is  recognized  and  treated 
with,  as  such,  by  the  federal  government.^     But  a  state 

^  In  re  McFarland,  13  N.  Y.  Supl.  22;  State  v.  Smith,  82  la.  423;  48  N. 
W.  Rep.  727. 
■'  People  V.  Rathburn,  21  Wend.  509. 

'  Ant£,  sees.  15,  33.  *  State  r.  Main,  16  Wis.  398. 

*  In  re  Rosdeitscher,  33  Fed.  Rep.  657. 
^  Ex  parte  Rosenblat,  51  Cal.  285. 
'  State  t;.  McKenney,  18  Nev.  182;  2  Pac.  Rep.  171. 


472      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

court  has  jurisdiction  to  try  a  full-blooded  Indian  for  the 
killing  of  another  full-blooded  Indian,  where  it  does  not 
appear  that  the  accused  belonged  to  such  a  tribe. ^ 

The  means  by  which  the  defendant  has  been  brought 
within  the  jurisdiction  of  the  court  does  not  affect  its  right 
to  try  him.^  Therefore  it  is  held  that  the  question  as 
to  the  legality  of  the  proceedings  by  which  a  party  was 
extradited  and  brought  from  a  foreign  country  into  the 
state  is  immaterial  as  affecting  the  jurisdiction  of  the 
court.^  But  the  proceedings  for  the  extradition  of  one  ac- 
cused of  crime,  under  a  treaty  authorizing  it,  may  limit 
the  jurisdiction  of  the  court.  For  example,  if  one  is  ex- 
tradited for  the  commission  of  a  designated  crime,  he  can 
not,  after  being  brought  into  this  country,  be  prosecuted 
for  an  entirely  different  and  distinct  offense,  until  he  has 
been  set  at  liberty  and  given  an  opportunity  to  return  to 
the  country  from  which  he  was  taken.*  The  extradition 
from  a  foreign  country,  although  for  the  violation  of  a 
state  law,  must  be  negotiated  through  the  federal  govern- 
ment.* And  the  federal  courts  may  protect  the  party  from 
prosecution,  in  a  state  as  well  as  in  the  federal  courts,  for 
an  offense  other  than  the  one  for  which  he  w^as  extradited.® 
But  where  the  accused  has  been  brought  from  a  foreign 
country,  not  under  or  by  virtue  of  a  treaty  Avith  such 
country,  but  by  unlawful  force  and  against  his  will,  and  is 
being  tried  in  a  state  court,  the  federal  courts  have  no 
power  to  interfere."    The  fact  that  the  wrongful  abduction 

'  People  V.  Ketchum,  73  Cal.  635;  15  Pac.  Rep.  353. 

2  People  V.  Pratt,  78  Cal.  345  ;  20  Pac.  Rep.  731 ;  Ex  parte  Ah  Men,  77 
Cal.  198;  19  Pac.  Rep.  380;  Mahon  v.  Justice,  127  U.  S.  708;  8  Sup.  Ct. 
Rep.  1204 ;  In  re  Mahon,  34  Fed.  Rep.  525 ;  Brooken  v.  State,  26  Tex. 
App.121 ;  9  S.  W.  Rep.  735;  State  v.  Brewster,  7  Vt.  118;  Ker  v.  Illinois, 
119  U.  S.  436 ;  7  Sup.  Ct.  Rep.  225 ;  Dow's  case,  18  Pa.  St.  37 ;  State  v. 
Ross,  21  la.  467;  Kingen  v.  Kelley,  3  Wyo.  266;  28  Pac.  Rep.  36.  But 
see  State  v.  Simmons,  39  Kan.  262;  18  Pac.  Rep.  177. 

^People  V.  Pratt,  78  Cal.  345;  20  Pac.  Rep.  731. 

*  United  States  v.  Rauscher,  119  U.  S.  407 ;  7  Sup.  Ct.  Rep.  234. 

^  United  States  v.  Rauscher,  119  U.  S.  407 ;  7  Sup.  Ct.  Rep.  234  ;  Ker  v. 
Illinois,  119  U.  S.  436;  7  Sup.  Ct.  Rep.  225. 

« Ker  V.  Illlinois,  119  U.  S.  436;  7  Sup.  Ct.  Rep.  225;  Mahon  v.  Justice, 
127  U.  S.  708;  8  Sup.  Ct.  Rep.  1204. 


CRIMINAL    JURISDICTION.  473 

was   by  the    officers   of  the    state    does    not    change    the 
rule.^ 

The  accused  must  be  before  the  court.  It  is  not  enough 
that  process  be  served  upon  him.  His  actual  presence  and 
attendance  in  court  is  necessary  to  authorize  the  court  to 
proceed  against  him.^  The  actual  presence  of  the  defend- 
ant, after  having  once  been  brought  before  the  court,  is' 
dispensed  with  by  statute  in  some  of  the  states  in  prose- 
cutions for  minor  oflenses.  But  unless  so  dispensed  with, 
the  attendance  of  the  accused  at  every  stage  of  the  pro- 
ceeding is  necessary. 

The  fact  that  the  crime  was  committed  within  the  juris- 
diction of  the  court  must  be  alleged  in  the  indictment  or 
information  in  order  to  vest  the  court  with  jurisdiction.^ 
This  allegation  is  dispensed  with,  by  statute,  in  some  of 
the  states,  and  the  same  left  to  be  determined  by  the  proof 
at  the  trial.* 

Where  the  court  has  jurisdiction  over  a  part  of  a  county 
only,  it  must  be  alleged  that  the  offense  was  committed 
within  that  part  of  the  county  over  which  its  jurisdiction 
extends.^  It  is  otherwise  in  some  of  the  states,  but  this  is 
by  reason  of  a  statute  rendering  the  allegation  unneces- 
sary.'' 

Whether  the  offense  was  committed  within  the  jurisdic- 
tion of  the  court  or  not  is  one  of  fact  to  be  determined  by 
the  jury,  when  properly  alleged  in  the  indictment,  and 
may  be  controverted  under  a  plea  of  not  guilty.  The 
burden  is  upon  the  prosecution  to  establish  the  fact  that 
the  offense  w^as  committed  within  the  jurisdiction  of  the 
court.^  And  a  finding  by  the  court  of  the  facts  necessary 
to  give  it  jurisdiction,  when  properly  alleged,  is  conclu- 
sive on  a  collateral  attack.^     But  proof  of  the  venue  is  ab- 

^  Kingen  v.  Kelley,  3  Wyo.  266 ;  28  Pac.  Rep.  36. 

^  Bigelow  V.  Stearns,  19  Johns.  39;  10  Am.  Dec.  189. 

'  People  V.  Wong  Wang,  92  Cal.  277 ;  28  Pac.  Rep.  270. 

*  Toole  V.  State,  8  Sou.  Rep.  95. 

^People  V.  More,  68  Cal.  500;  9  Pac.  Rep.  461. 

^  Ex  parte  Noble,  96  Cal.  362 ;  31  Pac.  Rep.  224 


474      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

solutely  necessary  to  sustain  a  couviction  on  appeal.'  But 
this  may  be  shown  by  circumstantial  or  indirect  evidence.* 

The  question  can  not,  in  such  case,  be  raised  by  de- 
murrer, motion  to  set  aside  or  quash  the  indictment,  or 
motion  in  arrest  of  judgment  because  not  appearing  on 
the  face  of  the  record.^  But  it  may  be  raised  by  a  plea  in 
abatement,  where  jurisdiction  is  denied,  and  must  be 
shown  by  extraneous  evidence.*  But  if  not  alleged  in  the 
indictment,  it  may  be  reached  by  demurrer,  when  a  de- 
murrer is  permitted  iu  criminal  cases,  as  it  is  in  some  of 
the  states,  or  by  motion  to  quash  or  set  aside  the  indict- 
ment, or  by  motion  in  arrest  of  judgment.^  And  if  a  court 
is  given  jurisdiction  of  a  certain  class  of  crimes,  only  in 
certain  specified  cases,  or  under  certain  specified  circum- 
stances, the  facts  necessary  to  bring  the  case  within  the 
statute  must  be  alleged.^  But  it  is  held  that  where  a  court 
is  given  jurisdiction  only  after  the  lapse  of  a  designated 
length  of  time  after  the  commission  of  the  offense,  the 
burden  is  upon  the  defendant  to  show  that  the  time  has 
not  expired.^  But  when  it  appears  from  the  evidence  at 
the  trial  that  the  time  had  not  expired  when  the  prose- 
cution was  instituted,  the  court  is  without  jurisdiction  and 
the  cause  must  be  dismissed.^ 

Where  the  indictment  is  presented  before  the  expira- 
tion of  the  time,  the  whole  proceeding  is  absolutely  void 
and  is  no  bar  to  a  subsequent  prosecution.^     But  if  the 

'  State  V.  McGinnis,  74  Mo.  245 ;  People  v.  Parks,  44  Cal.  105  ;  People 
V.  Bevans,  52  Cal.  470;  Mullinix  v.  State,  43  Ind.  511 ;  Stazey  v.  State,  58 
Ind.  514;  State  v.  Martinet,  75  Mo.  251. 

2  State  V.  McGinnis,  76  Mo.  326;  Beavers  v.  State,  58  Ind.  530;  State  v. 
Hartinet,  75  Mo.  251. 

^  People  V.  More,  68  Cal.  500 ;  9  Pac.  Rep.  461. 

*  Hoover  v.  State,  110  Ind.  349;  11  N.  E.  Rep.  434. 

^  Justice  V.  State,  17  Ind.  56. 

^Justice  y.  State,  17  Ind.  56;  McCarty  v.  State,  16  Ind.  310;  Broad- 
hurst  V.  State,  21  Ind.  333;  Cobb  v.  State,  27  Ind.  133;  Davis  v.  State,  69 
Ind.  130;  Klaise  v.  State,  27  Wis.  462;  State  v.  Porter,  101  N.  Car.  713; 
7  S.  E.  Rep.  902. 

'  State  V.  Shelly,  98  N.  Car.  673 ;  4  S.  E.  Rep.  530. 

«  State  V.  Porter,  101  N.  Car.  713 ;  7  S.  E.  Rep.  902. 

«  State  V.  Cooper,  104  N.  Car.  890;  10  S.  E.  Rep.  510. 


CRIMINAL   JURISDICTION.  475 

offense  charged  in  the  indictment  or  information  is  one 
of  which  the  court  has  jurisdiction,  but  the  evidence 
shows  the  accused  to  be  guilty  of  a  lesser  offense,  included 
within  the  one  charged,  the  jurisdiction  of  the  court  is  not 
ousted,  although  it  would  not  have  had  jurisdiction  of  the 
lesser  offense  if  the  same  had  been  charged.^ 

Where  a  court  is  only  authorized  to  issue  a  warrant 
upon  evidence  of  the  guilt  of  the  party  named  therein, 
there  must  be  some  evidence  of  his  guilt  to  vest  the  court 
with  jurisdiction.  And  it  is  held  that  an  affidavit  ex- 
pressing a  mere  opinion  to  that  effect  is  not  enough.^  But 
some  proof,  however  slight,  having  a  legal  tendency  to 
make  out  a  proper  case  for  the  issuance  of  the  warrant, 
will  render  the  proceeding  valid  upon  a  collateral  attack.* 

There  are  statutory  exceptions  to  the  rule  that  a  defend- 
ant can  only  be  tried  in  the  county,  or  other  defined  ter- 
ritory, in  which  the  offense  was  committed.  For  example, 
in  cases  of  larceny  and  other  similar  offenses  it  is  some- 
times provided  that  the  offense  may  be  prosecuted  either 
in  the  county  where  the  property  was  stolen,  or  in  any 
county  into  which  the  stolen  property  was  taken  or  found.* 
So  when  stolen  property  is  brought  by  the  thief  into  any 
county  from  another  state  or  country.^  So  where  the  of- 
fense is  committed  partly  in  one  and  partly  in  another 
county.® 

In  cases  of  murder  it  is  now  usually  provided  by  statute 
that  the  prosecution  may  be  had  where  the  fatal  blow  was 
struck,  although  the  death  may  have  occurred  in  another 
county,  or  even  in  another  state;   and  such  statutes  are 

'  State  V.  Fesperman,  108  N.  Car.  770;  13  S.  E.  Rep.  14. 

^  Ex  parte  Dimmig,  74  Cal.  164;  15  Pac.  Rep.  619;  Ex  parte  Spears, 
88  Cal.  640,  642;  26  Pac.  Rep.  608. 

'  Miller  i'.  Brinkerhoff,  4  Deiiio,  118;  47  Am.  Dec.  242,  243,  note. 

*  Campbell  v.  People,  109  111.  565;  50  Am.  Rep.  621;  People  v.  Scott, 
74  Cal.  94;  15  Pac.  Rep.  384;  People  v.  Mellon,  40  Cal.  648;  In  re  Mc- 
Farland,  13  N.  Y.  Supl.  22;  Steerman  v.  State,  10  Mo.  503. 

^  Haskins  v.  People,  16  N.  Y.  344,  348;  State  v.  Bennett,  14  la.  479. 

«  Archer  v.  The  State,  106  lud.  426;  7  N.  E.  Rep.  225;  Green  r.  State, 
66  Ala.  40;  41  Am.  Rep.  744. 


476     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

held  to  be  constitutional.'  So  with  reference  to  a  statute 
authorizing  the  prosecution  in  the  state  where  the  death 
occurred,  the  wound  having  been  inflicted  on  the  high  seas 
or  in  another  state  or  country.^ 

The  necessity  for  such  statutes  grew  out  of  the  uncer- 
tainty of  the  common  law  as  to  jurisdiction  in  such  cases.^ 

Where  the  property  is  stolen  in  one  county  and  taken  into 
another  the  jurisdiction  is,  under  such  a  statute,  concur- 
rent in  the  courts  of  the  two  counties,  and  the  prosecution 
maybe  commenced  in  either;*  and  the  court  which  first 
obtains  jurisdiction  of  the  person  of  the  accused  retains  it 
to  the  end,  no  matter  in  which  county  the  indictment  was 
first  found.^ 

In  cases  of  larceny,  where  property  has  been  stolen  in 
one  county  and  taken  into  another,  it  is  held  to  be  proper 
to  charge  the  ofltense  to  have  been  committed  in  the  latter 
county;  and  that  proof  of  its  having  been  taken  into  the 
latter  connty  by  the  thief  will  sustain  the  allegation  and 
uphold  the  jurisdiction  of  the  court.^  This  is  upon  the 
theory  that  each  asportation  of  stolen  property  from  one 
county  to  another  is  a  new  theft.^  But  it  is  otherwise  in 
the  case  of  a  burglary,  which  is  necessarily  local  in  its 
character.  There  the  fact  that  goods  were  carried  into 
the  county  where  the  charge  is  made  must  be  alleged.^ 
And  some  of  the  cases  go  further,  and  hold  that  the  legis- 
lature has  no  power  to  authorize  a  prosecution  for  burglary 
in  a  county  other  than  the  one  in  which  the  crime  was 

1  Green  v.  State,  66  Ala.  40;  41  Am.  Rep.  744;  Hunter  v.  State,  40  N.  J. 
Law,  495,  546;  Commonwealth  v.  Parker,  19  Mass.  549. 

2  Commonwealth  v.  MacLoon,  101  Mass.  1  ;  100  Am.  Dec.  89. 

3  Green  v.  State,  66  Ala.  40 ;  41  Am.  Rep.  744 ;  Hunter  v.  State,  40 
N.  J.  Law,  495,  546;  Commonwealth  v.  MacLoon,  101  Mass.  1 ;  100  Am. 
Dec.  89. 

*  People  V.  Scott,  74  Cal.  94 ;  15  Pac.  Rep.  384 ;  Ex  parte  Baldwin,  69 
la.  502;  29  N.  W.  Rep.  428. 

^  Ex  parte  Baldwin,  69  la.  502 ;  29  N.  W.  Rep.  428. 

»  Haskins  v.  People,  16  N.  Y.  344 ;  People  v.  Mellon,  40  Cal.  648 ;  Peo- 
ple V.  Scott,  74  Cal.  94;  15  Pac.  384 ;  State  v.  McGraw,  87  Mo.  161. 

^  State  V.  Smith,  66  Mo.  61 ;  State  v.  McGraw,  87  Mo.  161 ;  State  v. 
Bennett,  14  la.  479. 

«  Haskins  v.  People,  16  N.  Y.  344 ;  People  v.  Scott,  74  Cal.  94. 


CRIMINAL  JURISDICTION.  477 

committed.^  And  the  fact  that  an  offense  committed  in 
one  county  injuriously  affects  the  public  in  another  county, 
as  in  case  of  a  public  nuisance,  does  not  authorize  a  prose- 
cution therefor  in  the  latter.^ 

But  it  is  provided  in  some  of  the  states  that  a  party  may 
be  prosecuted  in  any  county  where  the  acts  or  effects  of  the 
act  constituting  or  requisite  to  the  consummation  of  the' 
offense  occur,  which  changes  the  rule.^  But  it  is  held  that 
the  statute  does  not  apply  where  the  act  constituting  the 
offense  was  perpetrated  in  one  county,  although  the  re- 
sult intended  to  be  brought  about  by  the  act  occurred, 
later,  in  another  county,  and  that  in  such  case  the  crime 
must  be  prosecuted  in  the  county  where  the  act  was  done.* 
And  a  statute  authorizing  the  prosecution  of  an  offense 
committed  wholly  within  another  state  or  government  has 
been  held  to  be  void.^  But  the  remarks  made  on  this  sub- 
ject in  the  case  cited  have  been  characterized  as  purely 
obiter  dicta,  and  the  contrary  rule  maintained.^ 

Both  of  these  cases  were  for  manslaughter.  In  the 
later  case  the  conclusion  reached  seems  to  be  based, 
mainly,  upon  the  theory  that  the  blows  inflicted,  and  their 
efiects,  carried  by  the  injured  party  within  the  jurisdiction 
of  the  court,  were  the  continuous  operation  and  effect  of 
the  unlawful  act  and  the  unlawful  intent  with  which  the 
wound  was  administered  attended  and  qualified  the  act 
until  its  final  result.  It  must  be  conceded  that  this  case 
is  in  conflict  with  cases  respecting  other  crimes  which  do 
not  seem  to  difter,  in  principle,  from  that  of  manslaughter. 
Cases  holding  the  right  to  prosecute  in  the  state  in  which 
the  result  of  the  act  rather  than  the  act  itself  transpired 
are  usually  cases  in  which  the  act  itself,  or  a  series  of  acts, 

'  State  V.  McGraw,  87  Mo.  161 ;  Ex  parte  Slater,  72  Mo.  106. 

'In  re  Eldred,  46  Wis.  ooO;  1  N.  W.  Rep.  175.  But  see  Common- 
wealth r.  MacLoon,  101  Mass.  1 ;  100  Am.  Dec.  89. 

'  In  re  McFarland,  13  N.  Y.  Supl.  22 ;  State  v.  Smith,  82  la.  423 ;  48 
N.  W.  Rep.  727 ;  State  v.  Hollenbeck,  36  la.  112. 

*  State  V.  Hollenbeck,  36  la.  112. 

^  State  V.  Carter,  27  N.  J.  Law,  499. 

®  Commonwealth  v.  MacLoon,  101  Mass.  1,  20  ;  100  Am.  Dec.  89. 


478      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

was  continuous  and  reached  into  the  state.  The  case  last 
referred  to  carries  the  rule  to  the  furthest  extremity,  cer- 
tainly, if  not  beyond  it.' 

The  law  requiring  the  prosecution  of  the  oftense  within 
the  county  where  it  was  committed  rests  mainly  upon 
the  right  to  a  trial  by  a  jury  of  the  county  or  neighbor- 
hood.^ 

This  was  a  right  that  existed  at  common  law  and,  under 
constitutional  provisions  guaranteeing  the  right  of  trial  by 
jury  it  is  a  right  that  can  not  be  taken  away  by  legisla- 
tive enactment.^  This  is  held  to  be  subject,  however,  to 
the  right  of  the  legislature  to  provide  for  the  trial  of  cer- 
tain offenses  in  either  of  two  or  more  counties  in  the  state 
as  above  mentioned.^  It  is  a  right  that  may  be  waived  by 
the  accused  by  a  demand  for  a  change  of  venue  to  another 
county,  but  a  statute  authorizing  a  change  of  venue  to  an- 
other county  at  the  instance  of  the  district  attorney  or 
other  prosecuting  officer,  without  the  consent  of  the  de- 
fendant, is  unconstitutional  and  void.^ 

Not  only  is  the  defendant  entitled  to  a  trial  within  the 
county  where  the  offense  was  committed,  but  he  is  entitled 
to  have  the  jury  selected  from  such  county.^ 

As  a  change  of  venue  may  be  taken  by  a  defendant,  it 
is  not  always  necessary  that  a  case  shall  be  tried  in  the 
county  where  the  crime  is  charged  to  have  been  committed, 
although  it  must  be  commenced  there.^ 

•  See,  further,  on  this  subject,  Commonwealth  ?•.  Parker,  19  Mass.  549. 

2  In  re  Eldred,  46  Wis.  530;  1  N.  W.  Rep.  175;  People  v.  Powell,  87 
Cal.  348;  25  Pac.  Rep.  481 ;  Wheeler  v.  State,  24  Wis.  52  ;  State  v.  How- 
ard, 31  Vt.  414 ;  Swart  v.  Kimball,  43  Mich.  448 ;  5  N.  W.  Rep.  035 ; 
Buckrice  v.  People,  1 10  111.  29. 

3  Kirk  V.  State,  41  Tenn.  344 ;  Wheeler  v.  State,  24  Wis.  52 ;  Osborn  v. 
State,  24  Ark.  629  ;  Ex  parte  Rivers,  40  Ala.  712 ;  State  v.  Knapp,  40  Kan. 
148 ;  Koppikus  v.  State  Capital  Commissioner,  16  Cal.  249 ;  Cooley  Const. 
Lim.,  5th  ed.,  390,  393;  Swart  v.  Kimball,-43  Mich.  448;  5  N.  W.  Rep. 
635;  Buckrice  v.  People,  110  111.  29. 

*  Mack  V.  People,  82  N.  Y.  235 ;  Archer  v.  State,  106  Ind.  426 ;  7  N.  E. 
Rep.  225. 

5  People  V.  Powell,  87  Cal.  348;  25  Pac.  Rep.  481.  rjl 

«  Buckrice  v.  People,  110  111.  29. 

'  Campbell  v.  People,  109  111.  565;  50  Am.  Rep.  621. 


CRIMINAL    JURISDICTION.  479 

The  court  to  which  the  action  is  sent  obtains  jurisdiction 
by  a  compHance  with  the  statute  authorizing  the  change 
and  an  order  therefor  by  the  proper  court.^  But  the  fail- 
ure of  the  clerk  of  the  court  from  which  the  change  is 
taken  to  perform  the  ministerial  duty  of  transferring  the 
papers  does  not  affect  the  jurisdiction  of  the  court  to' 
which  the  change  is  taken.^ 

It  is  held,  however,  that  the  court  from  which  the 
change  is  taken  has  jurisdiction  until  the  change  is  per- 
fected by  the  transmission  of  the  papers,  and  may,  during 
the  term,  change  its  order  as  to  the  county  to  which  the 
case  is  to  be  sent.^ 

A  criminal  prosecution  is  an  action  at  law,  and  where 
jurisdiction  of  all  cases  at  law  and  in  equity  is  given  to 
one  court  by  the  constitution,  such  grant  of  jurisdiction 
includes  criminal  as  well  as  civil  cases  at  law,  and  the  leg- 
islature can  not  take  away  such  jurisdiction  by  vesting 
the  same  exclusively  in  some  other  court/  But  in  some 
of  the  states  jurisdiction  is  by  the  constitution  vested  in 
one  court,  until  otherwise  provided  for,  in  which  case  it  is 
held  that  whenever  provision  is  made,  by  statute,  confer- 
ring such  jurisdiction  upon  some  other  court,  the  same  is 
otherwise  provided  for,  and  the  court  named  in  the  con- 
stitution is  thereby  divested  of  all  further  jurisdiction  in 
such  cases.^ 

Jurisdiction  given  by  the  constitution  can  not  be  taken 
away  by  the  legislature.^  But  if  it  is  not  made  exclusive, 
the  same  jurisdiction  may  be  conferred  upon  another 
court,  thereby  making  the  jurisdiction  in  the  two  courts 
concurrent.^  If  jurisdiction  is  conferred  upon  one  court 
by  the  constitution,  and  is  subsequently  transferred  by 

>  Ante,  sees.  47,  48,  51 ;  Goodhue  v.  People,  94  111.  37. 
^  Goodhue  v.  People,  94  111.  .37. 

^  People  r.  Zane,  105  111.  662.  See  on  this  subject  ante,  sees.  4(1,  47,  48, 
49,  51. 

*  Ante,  sees.  24,  65,  66;  Hankins  v.  The  People,  106  111.  628,  637;  Ter- 
ritory V.  Flowers,  2  Mont.  531 ;  Biscoe  v.  State,  68  Md.  294 ;  12  Atl. 
Rep.  25. 

*  Green  v.  Superior  Court,  78  Cal.  556 ;  21  Pac.  Rep.  307,  541. 

«  Ante,  sees.  24,  66 ;  State  /•.  Butt,  25  Fla.  258 ;  5  Sou.  Kep.  597. 


480     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

statute  to  another  court,  and  the  latter  is  thereafter  abol- 
ished, the  jurisdiction  returns  to  the  former,^ 

Where,  at  the  time  of  the  adoption  of  a  constitution 
which  declares  that  all  laws  relating  to  courts  shall  be 
uniform,  and  which  vests  jurisdiction  in  criminal  cases  in 
a  court  of  general  and  uniform  jurisdiction  throughout 
the  state,  a  special  statute  is  in  existence  conferring  exclu- 
sive jurisdiction  in  such  cases  upon  a  municipal  court  of  a 
city  within  the  state,  such  statute  is  abrogated  by  the 
constitution,  and  such  municipal  court  deprived  of  all 
further  jurisdiction.^  But  the  authority  to  vest  inferior 
municipal  courts  with  exclusive  jurisdiction  of  minor  of- 
fenses is  sometimes  given  by  the  constitution,  in  which 
case  such  jurisdiction  may  be  given  in  one  or  more  cities 
in  the  state,  and  not  in  others,  thereby  rendering  the 
jurisdiction  of  the  court  of  general  jurisdiction  different 
in  different  counties.* 

Where  a  court  has  jurisdiction  over  the  offense  charged, 
it  may  convict  of  a  lesser  offense  included  within  it,  al- 
though it  would  have  no  jurisdiction  over  the  latter  if 
charged.  In  such  cases  jurisdiction  is  determined  by  the 
charge  made  in  the  indictment,  and  not  by  the  verdict.* 
But  this  can  not  be  so  where  the  offense  actually  proved 
or  found  by  the  jury  to  have  been  committed  might  have 
been  embraced  within  or  committed  in  and  as  a  part  of 
the  perpetration  of  the  offense  charged,  but  is  not  in- 
cluded within  it  as  a  lesser  degree  of  criminal  offense. 
Thus  it  is  held  that  although  an  assault  and  battery  may 
be  committed  in  the  perpetration  of  a  riot,  the  former  is 
not  included  within  the  latter  in  the  sense  that  a  party 
charged  with  a  riot  could  be  convicted  of  an  assault  and 
battery.^ 

^  Anderson  v.  Commonwealth,  3  S.  W.  Rep.  127. 
^  Hart  V.  The  People,  89  111.  407. 

'  Green  v.  Superior  Court,  78  Cal.  556 ;  21  Pac.  Rep.  307,  541 ;  Ex  parte 
Wallingford,  60  Cal.  103. 

*  McLean  v.  State,  23  Fla.  281  ;  2  Sou.  Rep.  5 ;  Ex  parte  Donahue,  65 
Cal.  474 ;  4  Pac.  Rep.  449 ;  People  v.  Holland,  59  Cal.  364 ;  State  v.  Fesper- 
man,  108  N.  Car.  770 ;  13  S.  E.  Rep.  14 ;  People  v.  Rose,  15  N.  Y.  Supl.  815. 

*  Ferguson  v.  People,  90  111.  510. 


CRIMINAL   JURISDICTION.  481 

A  court  having  jurisdiction  of  the  offense  may  exceed 
its  powers  in  the  punishment  inflicted.  In  such  case,  if  the 
excessive  punishment  adjudged  is  separable  from  the  one 
authorized  by  law,  and  also  inflicted,  the  judgment  is  only 
void  as  to  the  excessive  punishment.  But  where  the 
judgment  is  a  unit  and  a  part  of  it  is  in  excess  of  the  juris- 
diction of  the  court,  the  whole  of  it  is  void.^ 

The  same  act  may  constitute  an  offense  against  a  state 
and  the  federal  government,  as  in  the  case  of  counterfeit- 
ing, and  the  courts  of  both  may  have  jurisdiction,  one  of 
the  offense  under  the  state  statute  and  the  other  under  the 
act  of  congress  defining  the  offense.^ 

An  appeal  confers  no  jurisdiction  upon  the  appellate 
court  where  the  court  below  had  no  jurisdiction  of  the 
subject-matter.^ 

The  mode  in  which  prosecutions  may  be  instituted  is 
sometimes  provided  for  and  limited  by  constitutional  pro- 
visions. For  example,  it  is  sometimes  provided  that  prose- 
cutions can  not  be  commenced  otherwise  than  by  the 
action  of  a  grand  jury.*  Under  such  a  provision,  a 
court  can  not  acquire  jurisdiction  by  the  filing  of  an 
information  or  in  any  way  other  than  by  the  pre- 
sentment or  indictment  of  a  grand  jury.^  And  vio- 
lations of  municipal  ordinances,  punishable  by  fine 
and  imprisonment,  are  criminal  offenses  and  within  the 
rule.^  But  if  there  is  no  constitutional  limitation  upon 
the  manner  of  commencing  criminal  prosecutions,  it  is 
within  the  control  of  the  legislature,  and  it  may  provide 
for  the  making  of  the  accusation  in  some  other  manner, 
as,  for  example,  by  examination   and  commitment  by  a 

'  Ex  parte  Kelly,  60  Cal.  154 ;  3  Pac.  Rep.  673. 

=  People  V.  McDonnell,  80  Cal.  285;  22  Pac.  Rep.  190;  United  States  v. 
Arjona,  120  U.  S.  479-488 ;  7  Sup.  Ct.  Rep.  628. 
■'  Ante,  sec.  21  ;  Klaise  v.  State,  27  Wis.  462. 

*  Haskins  v.  State,  47  Ark.  243;  1  S.  W.  Rep.  242. 

^  Haskins  v.  State,  47  Ark.  243;  1  S.  W.  Rep.  242;  State  v.  West,  42 
Minn.  147  ;  43  N.  W.  Rep.  845. 

*  State  V.  West,  42  Minn.  147 ;  43  N.  W.  Rep.  845. 

31 


482      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

magistrate  followed  by  an  inforniation  by  the  proper 
prosecuting  officer/  And  such  a  mode  of  prosecution  is 
not  one  without  due  process  of  law  or  in  violation  of  the 
constitution  of  the  United  States.*  But  where  provision 
is  made  for  an  examination  before  a  magistrate,  as  a 
foundation  for  the  filing  of  an  information,  such  exam- 
ination is  absolutely  necessary  and  can  not  be  waived  by 
the  accused.^  And  an  order  of  commitment  by  the  exam- 
ining magistrate  is  necessary  to  give  the  trial  court  juris- 
diction.* 

It  has  been  held  that  where  a  defendant  is  committed 
for  trial  for  one  oifense,  the  district  attorney  may,  upon 
such  a  commitment,  file  his  information  and  prosecute  for 
any  ofifense  appearing  from  the  evidence  taken  at  the  pre- 
liminary hearing.^ 

If  this  be  so,  the  commitment  by  the  magistrate  would 
seem  to  be  an  idle  ceremony.  The  duty  of  deciding  what 
offense  is  shown  by  the  evidence,  is  thus  committed  to  the 
district  attorney  instead  of  the  magistrate,  and  the  ac- 
cused may  be  imprisoned  for  the  commission  of  an  oflfense 
of  which  there  is  no  proof,  and  held  and  prosecuted  for  an 
entirely  dift'erent  one.  The  reasoning  by  which  this  con- 
clusion is  reached  is  any  thing  but  satisfactory,  and  seems 
to  be  directly  opposed  to  the  provisions  of  the  statute.^ 

It  is  held  also  that  the  magistrate  is  not  confined  to 

1  Hurtado  v.  People  of  California,  110  U.  S.  516 ;  4  Sup.  Ct.  Rep.  Ill,  292. 
="  Hurtado  v.  People  of  California,  110  U.  S.  516;  4  Sup.  Ct.  Rep.  Ill, 
292  ;  Kalloch  v.  Superior  Court,  56  Cal.  229. 

3  Ex  parte  Walsh,  39  Cal.  705;  Kalloch  r.  Superior  Court,  56  Cal.  229. 
*  People  V.  Thompson,  84  Cal.  598;  24  Pac.  Rep.  :;84. 

5  People  V.  Lee  Ah  (]huck,  66  Cal.  662 ;  6  Pac.  Rep.  859 ;  People  v. 
Vierra,  67  Cal.  231 ;  7  Pac.  Rep.  640. 

6  See  People  v.  Vierra,  67  Cal.  231,  232;  7  Pac.  Rep.  640,  where  the 
provisions  of  the  Penal  Code  of  California  on  the  subject  are  set  out. 
The  rule  laid  down  has,  however,  become  the  settled  law  of  the  state 
by  repeated  decisions  of  the  court.  People  v.  Giancoli,  74  Cal.  642,  646; 
16  Pac.  Rep.  510;  People  v.  Staples,  91  Cal.  23;  27  Pac.  Rep.  523;  Ex 
parte  Nicholas,  91  Cal.  640;  28  Pac.  Rep.  47.  But  see  concurring  opin- 
ion of  Paterson,  J.,  in  People  v.  Parker,  91  Cal.  91,  94 ;  27  Pac.  Rep.  537; 
and  Hurtado  v.  People  of  California,  110  U.  S.  516;  4  Sup.  Ct.  Rep.  HI, 
292. 


MARITIME   JURISDICTION.  483 

the  charge  made  before  him,  but  may  commit  the  accused 
for  any  offense  shown  by  the  evidence  to  have  been  com- 
mitted.^ 

The  district  attorney  is  not  given  unlimited  authority, 
however.  He  must  file  his  information  for  the  offense 
designated  by  the  magistrate  or  one  shown  by  the  evi- 
dence to  have  been  committed.' 

Where  the  accused  is  given  the  election  to  be  tried  in 
one  or  the  other  of  two  courts,  his  election  to  be  tried  in 
one  of  them  gives  that  court  exclusive  jurisdiction  of  the 
case.'  And  sometimes  the  demand  by  the  accused  for  a 
trial  by  jury  has  the  effect,  under  statutory  provisions,  to 
deprive  one  court  of  jurisdiction  and  transfer  it  to  an- 
other.* Sometimes  the  jurisdiction  of  an  offense  depends 
upon  whether  or  not  it  is  of  a  high  and  aggravated  char- 
acter. For  example,  in  cases  of  assault  and  battery,  whether 
the  offense  is  one  of  simple  assault  or  one  of  so  serious  a 
nature  as  to  render  it  "  high  and  aggravated."  In  such 
cases,  the  indictment  or  information  must  charge  the  facts 
necessary  to  show  that  the  offense  is  such  as  to  bring  it 
within  the  jurisdiction  of  the  court.' 

70.  Maritime  jurisdiction. — The  question  of  maritime 
and  admiralty  jurisdiction  arises  most  frequently  in  treat- 
ing of  the  jurisdiction  of  the  federal  courts  to  which 
as  a  general  rule,  such  jurisdiction  belongs  exclusively.^ 
But,  as  the  state  courts  are  not  wholly  without  jurisdic- 
tion in  cases  growing  out  of  the  navigation  of  vessels,  it 

'  People  V.  Wheeler,  73  Cal.  252  ;  14  Pac.  Rep.  796  ;  People  v.  Staples, 
91  Cal.  23;  27  Pac.  Rep.  523. 

2  People  V.  Parker,  91  Cal.  91 ;  27  Pac.  Rep.  537. 

»  Howell  V.  Commonwealth,  86  Va.  817  ;  11  S.  E.  Rep.  238. 

*  In  re  Gibson,  89  Ala.  174 ;  7  Sou.  Rep.  833. 

'  State  V.  Grant,  34  S.  Car.  109 ;  12  S.  E.  Rep.  1070. 

^Ante,  sec.  5;  Rev.  Stat.  U.  S.,  sec.  711;  Meyer  v.  Tapper,  66  U.  S. 
522;  Cowden  v.  Pacific  Coast  S.  S.  Co.,  94  Cal.  470;  29  Pac.  Rep.  873: 
Steamboat  Josephine,  39  N.  Y.  19;  Crawford  v.  Bark  Caroline  Reed,  42 
Cal.  469.  But  see  Warner  v.  Steamer  Uncle  Sam,  9  Cal.  697,  710;  Ord  v. 
Steamer  Uncle  Sam,  13  Cal.  370 ;  Taylor  v.  Steamer  Columbus,  5  Cal. 
268. 


4S4      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

would  seem  to  be  proper  to  consider  briefly  the  question 
of  their  jurisdiction,  with  the  view,  chiefly,  of  ascertaining 
to  what  extent  the  states  may  confer,  and  the  state  courts 
exercise,  jurisdiction  in  such  cases.^ 

This  jurisdiction  of  the  state  courts  is  not,  strictly 
speaking,  admiralty  jurisdiction.  It  is  confined  to  interior 
navigation  not  upon  tide  waters  or  inland  lakes  and  rivers 
where  no  commerce  is  carried  on  between  diiFerent  states 
or  with  a  foreign  nation.  Over  matters  growing  out  of 
such  interior  navigation,  the  federal  courts  have  no  juris- 
diction.^ Claims  against  vessels,  not  maritime  in  their 
nature,  are  within  the  jurisdiction  of  state  courts.^ 

The  states  may  and  frequently  do  provide  by  law  for 
liens  upon  vessels  in  certain  cases,  but  it  does  not  follow 
that  such  liens  must  or  can  he  enforced  in  the  state  courts. 
They  are  frequently  enforced  in  the  federal  courts,  and,  if 
maritime  contracts,  the  state  courts  can  not  enforce  them.* 

The  extent  to  which  the  federal  courts  of  admiralty 
jurisdiction  may  entertain  jurisdiction  of  claims  arising 
under  state  laws  does  not  depend  upon  such  statutes, 
"Whether  they  are  enforcible  in  the  state  courts,  depends, 
of  course,  upon  whether  the  jurisdiction  falls  within  the 
exclusive  jurisdiction  of  the  federal  courts.^  And  this  de- 
pends, not  upon  the  character  of  the  parties,  but  upon  the 
character  of  the  contract.*' 

It  is  held,  with  reference  to  some  of  the  state  laws,  pro 

^As  to  what  courts  exercise  maritime  jurisdiction,  see  Ante,  sec.  5. 

^Steamboat  Orleans  v.  Phoebus,  11  Pet.  175;  King  r.  Greenvvay,  71 
N.  Y.  413. 

^  Brookman  v.  Hamill,  43  N.  Y.  554;  3  Am.  liep.  731;  Sheppard  r. 
Steele,  43  N.  Y.  52 ;   3  Am.  Rep.  660. 

*  Meyer  v.  Tupper,  66  U.  S.  522 ;  Peyroux  v.  Howard,  7  Pet.  324  ;  The 
General  Smith,  4  Wheat.  438;  Rodd  v.  Heartt,  21  Wall.  558;  The  Ore- 
gon, 45  Fed.  Rep.  62. 

*  Steamboat  Josephine,  39  N.  Y.  19;  Brookman  r.  Hamiil,  43  N.  Y. 
654 ;  3  Am.  Rep.  731 ;  Poole  v.  Kermit,  59  N.  Y.  554  ;  King  r.  Greenway, 
71  N.  Y.  413;  Johnson  v.  Chicago  and  Pacific  El.  Co.,  119  U.  S.  388;  7 
Sup.  Ct.  Rep.  254 ;  Gindelve  v.  Corrigan,  129  111.  582;  22  N.  E.  Rep.  516; 
Crawford  v.  Bark  Caroline  Reed,  42  Cal.  469. 

«  McDonald  i:  Prioleau,  44  Fed.  Rep.  769. 


MARITIME    JURISDICTIOX,  485 

viding  for  such  liens,  that  it  is  discretionary  with  the  fed- 
eral courts  whether  they  will  entertain  jurisdiction  to  en- 
force them  or  not,  and  that  this  may  be  determined  by  the 
rules  of  the  court. ^  And  in  the  regulation  of  commerce, 
congress  may  provide  for  such  liens.^  But,  so  long  as  con- 
gress does  not  interpose  to  regulate  the  subject,  the  rights 
of  material-men  furnishing  necessaries  to  a  vessel  in  her-' 
home  port  may  be  regulated  in  each  state  by  state  legisla- 
tion.^ And  a  state  may  regulate  fisheries  in  the  navigable 
waters  within  its  territory  where  there  is  no  federal  stat- 
ute or  treaty  on  the  subject.'  So  it  may  impose  proper 
police  regulations  affecting  vessels  navigating  the  waters 
of  the  state  so  long  as  such  regulations  do  not  conflict 
with  congressional  legislation.*  But  it  can  not  enforce  a 
maritime  claim  or  contract  in  its  own  courts,  except  by 
common-law  remedy.^ 

The  states  can  not,  by  laws  providing  for  liens,  extend 
or  enlarge  the  jurisdiction  of  the  federal  courts,  nor,  if  the 
lien  is  one  cognizable  in  the  admiralty  courts,  can  the 
courts  decline  to  exercise  jurisdiction  because  the  enforce- 
ment of  the  lien  is  provided  for  and  regulated  by  a  state 
law.^  Therefore,  a  state  may  provide  for  a  lien  upon  a  do- 
mestic vessel,  and  the  federal  courts  have  jurisdiction  to 
enforce  it,  although  the  general  maritime  laws  would  give 
a  lien  only  upon  foreign  vessels  or  upon  a  vessel  in  the 
port  of  a  state  to  which  she  does  not  belong.''  But  a  lien 
given  by  state  laws  for  supplies  furnished  to  or  repairs 
made  upon  a  vessel  engaged  in  foreign  commerce  can  not 
be  enforced  in  the  state  courts,  although  such  supplies 
were  furnished  or  repairs  made  in  her  home  port.^ 

'  Meyer  v.  Tapper,  66  U.  S.  522.  *  Rodd  v.  Heartt,  21  Wall.  558. 

3  Commonwealth  v.  Manchester,  152  Mass.  230;  25  N.  E.  Eep.  113; 
Manchester  v.  Commonwealth,  139  U.  S.  240;  11  Sup.  Ct.  Rep.  559. 

*  Harmon  v.  City  of  Chicago,  110  111.  400;  51  Am.  Rep.  698. 

=  Brookman  v.  Hamill,  43  N.  Y.  554 ;  3  Am.  Rep.  731 ;  Poole  v.  Kermit, 
59  N.  Y.  554. 

«  Meyer  )■.  Tapper,  06  U.  S.  522. 

^Peyrouxr.  Howard,  7  Pet.  324;  The  General  Smith,  4  Wheat.  438; 
McDonald  v.  Prioleau,  44  Fed.  Rep.  769. 

*  Poole  V.  Kermit,  59  N.  Y.  554. 


486      COMMON  LAW,  EQUITY,  AND  STATUTORY  JUEISDICTION. 

A  state  may  provide  for,  and  enforce  through  its  own 
courts,  liens  upon  vessels  navigating  the  interior  streams 
of  the  state  and  not  engaged  in  foreign  or  interstate  com- 
merce.^ So  it  may  enforce,  through  its  courts,  liens  for 
work  and  supplies  in  the  construction  of  a  vessel  not  yet 
launched,  because  contracts  for  such  work  and  supplies  are 
not  maritime.^  But  a  state  law  providing  for  such  a  lien 
could  not  extend  the  jurisdiction  of  the  admiralty  courts 
to  a  case  where  the  lien  grew  out  of  a  contract  or  other 
transaction  upon  the  interior  streams  of  the  state,  over 
which  the  federal  courts  have  no  jurisdiction,  because  it 
would  not  be  a  maritime  contract  or  a  transaction  within 
the  rules  of  the  admiralty  laws.^ 

The  general  rule  of  admiralty  jurisdiction  is  that  it  is 
confined  to  tide  waters,  and  does  not  extend  to  navigable 
streams  above  the  ebb  and  flow  of  the  tides.^  But  the 
jurisdiction  of  the  federal  courts  is  not  so  confined  under 
the  Constitution  of  the  United  States,  as  held  by  later 
decisions,  but  extends  to  the  navigable  lakes  and  rivers 
above  the  tides  where  commerce  is  carried  on  between  dif- 
ferent states  or  with  a  foreign  nation.^ 

The  laws  of  the  United  States  reserve  to  the  states  the 
right  to  enforce,  through  their  courts,  any  common-law 
remedy  which  the  common  law  is  competent  to  give  in 
matters  growing  out  of  maritime  transactions.®  And  the 
foundation  of  the  cause  of  action  is  not  material.  It  is 
the  remedy  and  not  the  right  that  is  reserved  to  the  states.^ 
The  fact  that  the  common-law  remedy  is  aided  by  a  lien 

»  King  V.  Greenway,  71  N.  Y.  413. 

2  King  V.  Greenway,  71  N.  Y.  413 ;  Wilson  v.  Lawrence,  82  N.  Y.  409. 

'  Peyroux  r.  Howard,  7  Pet.  324 ;  Steamboat  Orleans  v.  Phoebus,  11 
Pet.  175. 

*  Peyroux  v.  Howard,  7  Pet.  324. 

^  The  Genessee  Chief,  12  How.  443  ;  The  Eagle  v.  Eraser,  8  Wall.  1.5. 

«  Rev.  Stat.  U.  S.,  sec.  711 ;  Cowden  v.  Pacific  Coast  S.  S.  Co.,  94  Cal. 
470;  29  Pac.  Rep.  873;  Chappell  v.  Bradshaw,  128  U.  S.  132;  9  Sup.  Ct. 
Rep.  40;  Brookman  v.  Hamill,  43  N.  Y.  554;  3  Am.  Rep.  731;  Dougan  v. 
Champlain  Trans.  Co.,  56  N.  Y.  1. 

''  Dougan  v.  Champlain  Trans.  Co.,  56  N.  Y.  1. 


IMPEACHMENT.  487 

provided  for  by  a  state  law,  does  not  affect  the  jurisdiction 
of  the  state  courts.^  Therefore  it  is  held  that  a  foreign 
attachment  provided  by  a  state  law  may  be  enforced  against 
a  vessel  in  aid  of  a  common-law  action  in  personam  in  a 
state  court.^ 

71.  Impeachment. — Jurisdiction  of  proceedings  for  the 
impeachment  of  public  officers  is  usually  vested  in  some 
political  body.  The  Constitution  of  the  United  States 
provides  for  the  removal  from  office,  on  impeachment,  of 
the  president,  vice-president,  and  all  civil  officers  of  the 
United  States.^  And  the  sole  power  of  impeachment  is 
vested  in  the  house  of  representatives.*  But  this  clause 
of  the  constitution  confers  upon  the  house  of  representa- 
tives the  power  to  prefer  charges  of  impeachment  and 
thereby  institute  the  proceedings,  and  does  not  confer 
jurisdiction  to  try  such  charges.  This  jurisdiction  is 
vested  by  the  constitution  in  the  senate.^ 

The  jurisdiction,  as  to  the  punishment  to  be  inflicted,  is 
limited  by  the  express  terms  of  the  constitution,  and  a 
conviction  can  not  be  had  without  the  concurrence  of  two- 
thirds  of  the  members  present.^  When  the  president  of 
the  United  States  is  tried  the  chief  justice  of  the  supreme 
court  is  made  a  part  of  the  court,  and  must  preside.^  In 
other  cases  the  court  is  purely  a  political  body  possessing, 
for  the  time  being,  the  limited  jurisdiction  expressly  con- 
ferred upon  it  by  the  constitution. 

The  senate,  in  impeachment  cases,  acquires  jurisdiction 
by  charges  or  articles  of  impeachment  being  preferred  by 
the  house  of  representatives,  without  which  it  has  no 
power  to  act.  The  impeachment  of  an  officer  does  not 
affect  the  jurisdiction  of  the  courts  to  try  and  convict  him, 
under  indictment,  for  the  same  offense  for  which  he  was 
impeached.* 

'  Johnson  v.  Chicago  &  Pac.  El.  Co.,  119  U.  S.  388;  7  Sup.  Ct.  Eep.  254; 
Gindele  r.  Corrigan,  129  111.  582;  22  N.  E.  Rep.  516. 

2  Taylor  v.  Carryl,  20  How.  583 ;  Johnson  v.  Chicago  &  Pac.  El.  Co.,  119 
U.  S.  388 ;  7  Sup.  Ct.  Rep.  254. 

*  Const.  U.  S.,  Art.  II,  sec.  4.  *  Const.  U.  S.,  Art.  I,  sec.  2. 

*  Art.  I,  sec.  3. 


488      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

As  to  state  officers,  similar  provisions  are  made  by  con- 
stitutional provision  for  their  impeachment  by  the  legisla- 
ture. But  in  some  of  the  states  provision  is  made  for  the 
impeachment  of  certain  officers  before  the  courts  upon  in- 
formation filed  by  the  proper  prosecuting  officer.  But  a 
prior  hearing  and  finding  or  report  by  a  grand  jury  or 
some  other  designated  body,  is  usually  required  as  a  foun- 
dation for  the  information.  In  such  cases  the  filing  of  an 
information  is  not  left  to  the  discretion  of  the  prosecuting 
officer.  Without  the  finding  or  report  required  he  has  no 
authority  to  act,  nor  will  an  information  filed  without  the 
finding  or  report  required  being  made  uphold  the  proceed- 
ing.^ In  the  exercise  of  such  jurisdiction  a  substantial 
compliance  with  the  constitution  or  statute  authorizing  it, 
and  providing  the  proceeding  to  be  taken,  is  necessary.^ 

There  is  very  little  law  to  be  found  on  the  subject  of  im- 
peachment, and  jurisdiction  in  such  cases  has  rarely  been 
raised  or  considered.  This  is  probably  because  proceed- 
ings of  this  kind  have  generally  resulted  in  the  acquittal 
of  the  officer  charged. 

72.  Contempts. — This  subject  has  received  some  atten- 
tion in  discussing  the  inherent  powers  of  courts.^  But  it 
is  believed  that  a  fuller  consideration  of  the  questions  of 
jurisdiction  growing  out  of  proceedings  of  this  character 
is  necessary,  in  this  connection,  without  repeating  what 
has  been  already  said. 

Jurisdiction  in  cases  of  contempt  does  not,  in  all  cases, 
depend  upon  express  law,  and  is  sometimes  exercised  by 
the  courts,  in  spite  of  statutory  provisions  forbidding  or 
limiting  its  exercise.  It  belongs  to  the  courts  as  a  part 
of  their  inherent  powers,  of  which  they  can  not  be  de- 
prived by  the  legislative  branch  of  the  government.'     And 

^  State  V.  Savage,  89  Ala.  1 ;  7  Sou.  Rep.  7.  ^Ante,  sec.  27. 

^Ante,  sec.  27 ;  Hawkins  v.  State,  125  Ind.  570 ;  25  N.  E.  Eep.  818 ;  In 
re  Shortridge,  34  Pac  Rep.  227 ;  In  re  Terry,  128  U.  S.  289;  9  Sup.  Ct.  Rep. 
77;  Cartwright's  case,  114  Mass.  230,  238;  Cooper  v.  People,  13  Col.  337, 
373 ;  22  Pac.  Rep.  790 ;  Ex  parte  Robinson,  19  Wall.  505 ;  People  r.  Wil- 
son, 64  111.  195;  16  Am.  Rep.  528;  Clark  v.  People,  12  Am.  Dec.  178, 


I 


i 


CONTEMPTS.  489 

the  rule  that  the  courts  can  not  be  deprived  of  the  power 
to  punish  for  contempt  applies  to  constructive,  or  conse- 
quential, contempts,  as  well  as  to  direct  contempts.^ 

note;  State  v.  Frew,  24  W.  Va.  416;  49  Am.  Rep.  257  ;  Little  v.  State,  90 
Ind.  338;  46  Am.  Rep.  224. 

1  State  V.  Frew,  24  W.  Va.  416,  455  ;  49  Am.  Rep.  257. 

"  It  is  conceded  here  in  the  argument  that  it  is  not  in  the  power  of- 
the  legislature  to  take  from  courts  the  inherent  power  possessed  by  them 
to  punish  contempts  in  the  face  of  the  courts  ;  but  it  is  insisted  that  the 
legislature  may  at  will  deprive  the  courts  of  the  power  to  punish  sum- 
marily constructive  contempts  such  as  that  described  in  the  rule.  At 
common  law,  as  clearly  appears  in  Dandridge's  case,  the  power  to  pun- 
ish for  such  constructive  contempts  was  as  much  an  inherent  because  a 
necessary  power,  as  to  punish  for  direct  contempts ;  and  as  we  have 
seen,  this  position  is  abundantly  sustained  by  authority.  Does  not  the 
reason  for  the  existence  of  the  power  as  much  obtain  in  the  one  case 
as  the  other?  If  an  attorney  at  the  bar  should  charge  the  court  in  its 
presence  with  being  bribed  to  decide  the  cause  under  argument  against 
his  client,  no  one  would  doubt  for  a  moment  the  right  of  the  court  to 
summarily  punish  him  for  such  contempt.  Why  ?  Not  because  he  had 
interrupted  the  court  in  its  dispatch  of  business;  for  there  was  no  in- 
terruption in  the  hearing  of  the  cause.  The  court  would  have  the  right 
to  punish  the  olfender  because  the  language  used  was  designed  and  cal- 
culated to  destroy  the  confidence  of  the  people  in  the  court  and  to  de- 
grade the  court  in  the  opinion  of  the  public  and  to  corrupt  the  streams 
of  justice.  In  such  case  the  court  would  be  wanting  in  respect  for  the 
people,  whose  servant  it  is,  if  it  did  not  summarih^  punish  the  offender. 
There  may  not  have  been  a  half  dozen  persons  in  the  court-room  to 
hear  the  charge  of  corruption  against  the  court,  yet  it  would  be  not  only 
right  but  the  duty  of  the  court  to  punish  such  a  contempt.  Is  it 
not  absurd  to  say,  that  if  the  same  attorney  had  published  the  same 
charge  in  a  newspaper  printed  in  the  town  where  the  court  was  sitting 
which  was  read  by  thousands ;  aye,  read  in  the  court-room  within  view 
of  the  court  it  was  designed  to  affect,  he  would  not  be  guilty  of  a  con- 
tempt of  court,  for  which  he  should  be  summarily  punished  ?  If  a  suit 
for  libel  would  be  an  ample  vindication,  as  is  stated  by  the  judge,  who 
delivered  the  opinion  in  Scuart  v.  The  People,  3  Scam.,  in  the  one  case, 
a  slander  suit  would  be  in  the  other.  Such  a  suggestion  is  disgusting  to 
a  man  of  honor.  It  will  be  a  sorry  day  when  the  practice  shall  obtain 
among  judges  of  the  court  of  last  resort,  who  hold  the  dearest  interests 
of  the  people  in  their  hands,  where  in  their  judicial  capacity  they  may  be 
grossly  libeled  to  leave  thier  high  positions  and  go  before  a  jury  in  a  libel 
suit,  be  subjected  to  the  coarse  criticism  of  defendant's  counsel,  and  if 
they  succeed  in  their  suit,  have  it  cast  in  their-  teeth,  that  they  were  in 
fluenced  by  sordid  motives.  Who  would  have  any. respect  for  a  judge 
who  would  pursue  such  a  course  ?  Would  he  not  under  such  circum- 
stances deserve  the  contempt  of  every  good  citizen?     Besides,  wliat 


490       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

But  it  is  a  power  that  is  not  unlimited  or  beyond  the 
power  of  the  legislature  to  control,  limit,  and  regulate, 
within  reasonable  bounds.^  And  in  most  of  the  states,  the 
power  to  punish  for  contempt,  and  the  cases  in  which  it 
may  be  exercised,  are  given  and  provided  for  by  statute, 
including,  generally,  the  cases  in  which  the  right  would 
exist  without  such  statutory  authority.^ 

The  power  to  punish  for  contempt  is  not  contined  to 
courts,  but  is  allowed  to  legislative  bodies,  to  a  limited  ex- 
tent, and  without  such  power  being  expressly  granted  by 
the  constitution  or  statute.^  But  legislative  bodies  do  not 
possess  general  power  to  punish  for  contempt,  but  only  such 
powers  as  are  expressly  conferred  by  law  and  such  incidental 
powers  as  are  necessary  to  carry  out  and  exercise  its  duties 
and  functions.*     Therefore,  a  witness  can  not  be  punished 

right  would  he  have  individually  to  recover  damages  for  a  wrong  com- 
mitted against  him  in  his  judicial  capacity,  for  an  injury  done  the  peo- 
ple in  his  person  ?  In  such  cases  the  individual  must  always  be  sepa- 
rated from  the  judge.  The  court  has  no  right  to  punish  as  for  contempt 
one  who  libels  an  individual,  who  happens  to  be  the  judge;  but  it  is  a 
contempt  of  the  court,  as  such,  and  an  insult  to  the  people  represented 
by  the  court,  which  alone  the  court  can  punish  as  such.  Scarcely  less 
repulsive  to  all  sense  of  judicial  dignity  is  the  suggestion  that  the 
judge  should  play  the  role  of  prosecuting  witness  in  the  trial  of  an  in- 
dictment for  libel.  If  that  day  shall  ever  come,  when  such  shall  be  the 
only  protection  left  to  courts  of  justice  against  publications  afTecting 
their  judicial  integrity,  none  but  the  base  and  vicious  can  be  expected 
to  occupy  judicial  position."  State  v.  Frew,  24  W.  Va.  416,  455  ;  49  Am. 
Rep.  257. 

1  Ante,  sec.  27 ;  Hawkins  v.  State,  125  Ind.  570;  25  N.  E.  Rep.  818 ;  In 
re  Shortridge,  34  Pac.  Rep.  227  ;  Clark  v.  People,  12  Am.  Dec.  179,  note ; 
State  V.  Galloway,  5  Cold.  (Tenn.)  326;  98  Am.  Dec.  404;  In  re  Patter- 
son, 99  N.  Car.  407 ;  6  S.  E.  Rep.  643  ;  Langdon  v.  Judges,  76  Mich.  358 ; 
43  N.  W.  Rep.  310 ;  Wyatt  v.  People,  17  Colo.  252 ;  28  Pac.  Rep.  961 ; 
McCarthy  v.  State,  89  Tenn.  543 ;  15  S.  W.  Rep.  736  ;  State  v.  McClaugh- 
erty,  33  W.  Va.  250 ;  10  S.  E.  Rep.  407. 

2  Whittem  v.  State,  36  Ind.  196 ;  Haskett  v.  State,  51  Ind.  176  ;  People 
V.  Wilson,  64  111.  195 ;  16  Am.  Rep.  528 ;  Langdon  v.  Judges,  76  Mich. 
358;  43  N.  W.  Rep.  310. 

*  Cooley  Const.  Lim.,  5  ed.,  159,  160,  161 ;  Ex  parte  Dalton,  44  Ohio  St. 
142 ;  5  N.  E.  Rep.  136 ;  -Burnham  v.  Morrissey,  14  Gray,  226 ;  74  Am. 
Dec.  676 ;  People  v.  Webb,  5  N.  Y.  Supl.  855. 

*  Cooley  Const.  Lim.,  5  ed.,  161  ;  Kilbourn  v.  Thomson,  103  U.  S.  168; 
Burnham  r.  Morrissey,  14  Gray,  226 ;  74  Am.  Dec.  676 ;  Ex  parte  Dal- 


CONTEMPTS.  491 

for  contempt  for  refusing  to  testify  before  a  committee  of  a 
legislative  body  concerning  matters  foreign  to  any  legisla- 
tive measure  or  inquiry.^  And  the  power  to  punish  for 
contempt  is  open  to  review  by  the  courts.^ 

As  respects  the  congress  of  the  United  States,  the  power 
of  one  of  its  branches  to  punish  others  than  its  own  mem- 
bers for  contempt  was  recognized  in  an  early  case.^  But 
this  case  has  not  been  followed  in  later  cases,  and  the 
power  of  the  house  of  representatives  to  punish  for  con- 
tempts committed  by  others  than  its  own  members  has 
been  seriously  questioned,  but  has  been  left  an  open  ques- 
tion.* It  is  believed,  however,  that  it  is  generally  coo- 
ceded  that  the  attendance  of  witnesses  to  testify  with 
reference  to  powers  expressly  conferred  upon  the  two 
houses  of  congress,  as,  for  example,  in  contests  of  elec- 
tions, may  be  enforced  by  such  means  as  would  be  open  to 
a  court  of  justice.^  But  there  are  cases  which  seem  to 
hold  that  there  is  no  power  in  a  legislative  body  in  this 
country  to  punish  a  witness,  unless  such  power  is  ex- 
pressly conferred  by  statute  or  the  constitution,  and  that 
they  derive  no  such  power  from  the  common  law  or  from 
the  precedents  or  practice  in  the  English  parliament.^ 

The  jurisdiction  in.  contempts  depends,  in  a  measure, 
upon  the  character  of  the  contempt,  whether  dii^ect  or 
constructive  or  consequential.  These  two  kinds  of  con- 
tempts have  been  defined.^ 

ton,  44  Ohio  St.  142 ;  5  N.  E.  Rep.  136 ;  People  v.  Webb,  5  N.  Y.  Supl. 
855. 

1  Kilbourn  v.  Thomson,  103  U.  S.  168 ;  People  v.  Webb,  5  N.  Y.  Supl. 
855. 

^  Kilbourn  v.  Thomson,  103  U.  S.  168;  Burnham  v.  Morrissey,  14  Gray, 
226;  74  Am.  Dec.  676. 

3  Anderson  v.  Dunn,  6  Wheat.  204,  218. 

*  Kilbourn  v.  Thomson,  103  U.  S.  168,  196.  See.  however,  Ex  parte 
Dalton,  44  Ohio  St.  142 ;  5  N.  E.  Rep.  136 ;  People  v.  Keeler,  99  N.  Y. 
474 ;  Keeler  v.  McDonald,  2  N.  E.  Rep.  615. 

^  Kilbourn  v.  Thomson,  103  U.  S.  168,  190. 

^  People  V.  Keeler,  99  N.  Y.  474 ;  Keeler  v.  McDonald,  2  N.  E.  Rep. 
615  ;  People  v.  Webb,  5  N.  Y.  Supl.  855. 

'  Ante,  sec.  27.  See  also  In  re  Dill,  32  Kan.  608 ;  5  Pac.  Rep.  .39  ;  And. 
Die.  of  Law,  242;  Whittem  v.  State,  36  Ind.  196;  Murphy  v.  Wilson,  46 


492      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

An  act  may  constitute  a  contempt  at  common  law,  or  it 
may  be  made  so  by  express  statutory  provision.  And,  by 
statutes,  in  many  of  the  states,  provision  is  made  for  the 
punishment  of  what  are  known  as  civil  contempts,  being 
some  act  in  disobedience  of  some  judicial  order  entered 
for  the  benefit  or  advantage  of  another  party  to  the  pro- 
ceeding.^ 

And  although  such  statutes,  or  their  enforcement,  may 
aid  in  the  collection  of  a  debt,  they  do  not  authorize  im- 
prisonment for  debt,  and  are  not,  therefore,  void  for  that 
reason.^  But  if  the  order  is  for  the  imprisonment  of  the 
accused  until  a  debt  is  paid,  it  is  in  legal  effect  an  impris- 
onment for  debt,  and  in  violation  of  a  constitutional  pro- 
vision prohibiting  such  imprisonment.^ 

The  general  rule  is,  that  in  case  of  direct  contempts  no 
affidavit  or  other  showing  is  necessary  to  put  the  jurisdic- 
tion of  the  court  in  motion.  The  court  may  proceed, 
summarily,  upon  its  own  knowledge  of  the  facts.*  But  in 
case  of  constructive  contempts,  of  which  the  court  can 
have  no  actual  or  personal  knowledge,  such  a  showing,  in 
some  form,  is  necessary,  and  the  court  has  no  jurisdiction 
to  act  without  it.^  Generally  an  aflidavit  is  required  in 
such  cases,  by  statute,^  and  the  affidavit  charging  the  con- 

Ind.  537  ;  4  Blk.  Com.  *283-288  ;  In  re  Gary,  10  Fed.  Rep.  622,  629,  note ; 
Ex  parte  Savin,  131  U.  S.  267 ;  9  Sup.  Ct.  Rep.  699. 

1  Wyatt  V.  People,  17  Colo.  252  ;  28  Pac.  Rep.  961 ;  State  v.  Becht,  23 
Minn.  411. 

2  State  V.  Becht,  23  Minn.  411 ;  Ex  parte  Robertson,  27  Tex.  App.  628; 
11  S.  W.  Rep.  669 ;  Lewis  v.  Lewis,  80  Ga.  706 ;  6  S.  E.  Rep.  918. 

3  Golson  V.  Holman,  28  S.  Car.  53 ;  4  S.  E.  Rep.  811. 

*  In  re  Terry,  128  U.  S.  289 ;  9  Sup.  Ct.  Rep.  77 ;  Whittem  v.  State,  36 
Ind.  196;  Ex  parte  Wright,  65  Ind.  504;  State  v.  Gibson,  33  W.  Va.  97; 
10  S.  E.  Rep.  58;  Lowe  v.  State,  9  Ohio  St.  337. 

s  Whittem  v.  State,  36  Ind.  196;  McConnell  v.  State,  46  Ind.  298;  Ex 
parte  Wright,  65  Ind.  504;  Albany  City  Bank  v.  Schermerhorn,  9  Paige, 
372;  38  Am.  Dec.  551 ;  State  r.  Gibson,  33  W.  Va.  97  ;  10  S.  E.  Rep.  58; 
Thomas  r.  People,  14  Colo.  254;  23  Pac.  Rep.  326;  State  v.  Kaiser,  20  Or. 
50 ;  23  Pac.  Rep.  964 ;  Lowe  v.  State,  9  Ohio  St.  337 ;  In  re  Wood,  82 
Mich.  75;  45  N.  W.  Rep.  1113. 

8  Thomas  v.  People,  14  Colo.  254;  23  Pac.  Rep.  326;  State  v.  Kaiser,  20 
Or.  50 ;  23  Pac.  Rep.  964 ;  Lowe  v.  State,  9  Ohio  St.  337  ;  In  re  Wood,  82 
Mich.  75;  45  N.  AV.  Rep.  1113. 


I 


^;, 


CONTEMPTS.  493 

tempt  must  allege  such  facts  as  will  constitute  a  contempt 
of  the  court.^  Such  a  showing  is  usually  required  where 
the  act  complained  of  would  not  constitute  a  contempt  at 
common  law,  but  is  made  so  by  statutory  enactment. 

A  showing  by  affidavit  is  not  always  necessary,  however. 
The  return  of  an  officer  is  sometimes  sufficient,  as  in  case 
of  the  refusal  of  a  witness  to  obey  a  subpena,  and  similar 
cases.^  But  a  prima  facie  case  must  be  made  by  some 
legitimate  evidence,  in  a  way  that  can  be  made  a  part  of 
the  record.^ 

A  judgment  of  conviction  of  contempt  will  not  be  held 
void  because  the  affidavit  charging  the  offense  was  on  in- 
formation and  belief.^  And  it  has  been  held  that  the  com- 
mitment is  not  based  upon  the  affidavit  but  upon  the  evi- 
dence introduced  on  the  return  day,  and  that  therefore  the 
jurisdiction  of  the  court  does  not  depend  upon  the  form  of 
the  affidavit,  where  the  accused  has  been  served  with  an 
order  to  show  cause  and  given  an  opportunity  to  be  heard 
in  his  defense.^  But  this  does  not  accord  with  the  rule  on 
the  subject,  above  stated,  which  is  firmly  supported  by  the 
authorities.  A  party  should  not  be  put  to  his  defense 
except  upon  a  sufficient  accusation  being  presented. 

As  to  the  effect  of  a  judgment  in  cases  of  contempt, 
whether  conclusive,  or  open  to  review  on  appeal  or  other- 
wise, or  not,  the  authorities  are  not  agreed.  In  numerous 
cases  a  judgment  in  such  cases  is  held  to  be  final,  unless  it 
is  otherwise  provided  by  statute.® 

But  there  are  numerous  other  cases  holding  to  the  con- 
trary.''    And  the  latter  seems  to  be  the  better  rule.     There 


'  McConnell  v.  State,  46  Ind.  298;  Wyatt  v.  People,  17  Colo.  252;  28 
Pac,  Rep.  961. 

'^  Wilson  V.  State,  57  Ind.  71 ;  Ex  parte  Wright,  65  Ind.  504. 

^  Ex  parte  Wright,  65  Ind.  504. 

*  Ex  parte  Acock,  84  Cal.  50;  23  Pac.  Rep.  1029. 

5  Golden  Gate  M.  Co.  v.  Superior  Court,  65  Cal.  187 ;  3  Pac.  Rep.  628. 

«  Clark  V.  People,  Breese  (111.)  340;  12  Am.  Dec.  177,  188,  note;  Will- 
iamson's Case,  26  Pa.  St.  9;  67  Am.  Dec.  374;  Tyler  r.  Connelly,  65  Cal. 
28;  2  Pac.  Rep.  414;  People  v.  Kelly,  24  N.  Y.  74;  New  Orleans  v.  New 
York  M.  S.  Co.,  20  Wall.  387;  State  r.  Thurmond,  37  Tex.  340. 

''  Ante,  Bee.  27;  Myers  v.  State,  40  Ohio  St.  473;  22  N.  E.   Rep.  43; 


494     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

seems  to  be  no  good  reason  why  an  appeal  should  not  be 
allowed  in  such  cases,  which  often  involve  the  liberty  of 
a  citizen  which  may  be  taken  from  him  by  a  summary  and 
hasty  decision.  This  discrepancy  in  the  decided  cases  re- 
sults, in  some  instances,  from  difierent  statutory  provisions 
in  the  different  states,  but  not  always.  In  some  of  the 
states,  such  judgments  are  made  final  and  conclusive  by 
direct  statutory  enactment.^  And  some  of  the  cases,  hold- 
ing that  an  appeal  will  lie  in  such  proceedings,  base  their 
conclusion  upon  the  ground  that  statutes  providing  for 
appeals  in  criminal  cases  embrace  proceedings  for  con- 
tempts.^ But  a  directly  contrary  view  is  taken  in  other 
cases.^  Such  judgments  are,  like  all  others,  conclusive,  as 
against  a  collateral  attack.* 

In  some  of  the  states  a  distinction  is  made  between  di- 
rect and  constructive  contempts  with  respect  to  the  right 
to  appeal,  the  right  being  allowed  in  the  latter,  but  not  in 
the  former.* 

Whether  this  rule  of  conclusiveness  results  from  stat- 
utory provisions  or  not,  it  must  be  confined  to  cases 
where  the  court  has  jurisdiction  over  the  subject-matter 
and  the  person.  The  jurisdiction  of  the  court,  or  its 
general  power  to  punish  for  contempt,  is  always  open 
to  inquiry  as  in  other  cases.  And  if,  from  the  showing 
made,  the  court  would  have  no  power  to  punish  the  act 
done,  as  a  contempt,  under  any  circumstances,  or  the  court 
has  rendered  a  judgment  not  authorized  by  law,  the  pro- 
ceeding is  a  nullity  and  will  be  so  declared.®     But  whether 

Whitten  v.  State,  36  Ind.  196  ;  Wagner  r.  State,  68  Ind.  42;  In  re  Pierce, 
44  Wis.  411;  Worden  v.  Searls,  121  U.  S.  14.;  7  Sup.  Ct.  Rep.  814;  AVal- 
ton  V.  Beveling,  61  111.  201,  206. 

^  Cooper  V.  People,  13  Colo.  337,  373 ;  22  Pac.  Rep.  790. 

"  Whittem  v.  State,  36  Ind.  196;  Stuart  v.  People,  3  Scam.  (111.)  395; 
Clark  V.  People,  12  Am.  Dec.  186,  note. 

3  Tyler  v.  Connolly,  65  Cal.  28 ;  2  Pac.  Rep.  414. 

*  Ex  parte  Sternes,  77  Cal.  156 ;  19  Pac.  Rep.  275. 

*  In  re  Deaton,  105  N.  Car.  59 ;  11  S.  E.  Rep.  244. 

6  In  re  Shortridge,  34  Pac.  Bep.  227 ;  Cooper  v.  People,  13  Colo.  337, 
373;  22  Pac.  Rep.  790;  Commonwealth  v.  Lecky,  26  Am.  Dec,  41,  note; 
State  V.  Galloway,  5  Cold.  (Tenn.)  326;  98  Am.  Dec.  404;  In  re  Wood, 
82  Mich.  75;  45  N.  W.  Rep.  1113;  Gordon  v.  Buckles,  92  Cal.  481;  28 
Pac.  Rep.  490;  Dewey  v.  Superior  Court,  81  Cal.  64;  22  Pac.  Rep.  333. 


CONTEMPTS.  495 

the  acts  complained  of  in  the  particular  case  are  such  as 
to  constitute  a  contempt  of  court  or  not,  is  held  not  to  be 
a  jurisdictional  question,  and  the  fact  that  the  court  has 
erroneously  held  that  they  do  constitute  a  contempt  when 
they  do  not,  and  it  has  been  so  decided  on  appeal,  does 
not  render  the  action  of  the  court  void  for  want  of  juris- 
diction.^ 

It  is  only  necessary,  under  this  rule,  that  such  facts  be 
stated  as  will  call  upon  the  court  to  determine,  as  matter 
of  law,  whether  a  contempt  has  been  committed  or  not.^ 
But  the  cases  are  not  in  harmony  on  this  point.  In  some 
it  is  held  that  if  it  clearly  appears  from  the  record  that 
the  acts  charged  or  proved  did  not  constitute  a  contempt, 
the  accused  will  be  discharged  on  habeas  corpus  proceed- 
ings.^ 

With  reference  to  legislative  bodies,  their  action  is  gen- 
erally held  not  to  be  conclusive,  and  the  courts  maintain 
the  right  to  inquire  into  their  power  to  punish  for  con- 
tempt.    And  this  is  placed  upon  the  ground,  in  some  of 

^  Fischer  v.  Langbein,  103  N.  Y.  84,  8  N.  E.  Rep.  251. 

^  Fischer  v.  Langbein,  103  N.  Y.  84;  8  N.  E.  Rep.  251 ;  Rutherford  v. 
Hohnes,  66  N.  Y.  368. 

"  The  rule  to  be  deduced  from  these  authorities  seems  to  be  that 
when  a  court  is  called  upon  to  adjudicate  upon  doubtful  questions  of 
law,  or  determine  as  to  inferences  to  be  drawn  from  circumstances  rea- 
sonably susceptible  of  different  interpretation  or  meanings,  and  calling 
for  the  exercise  of  the  judicial  function  in  their  determination,  its  de- 
cision thereon  does  not  render  an  order  or  process  based  upon  it,  al- 
though afterward  vacated  or  set  aside  as  erroneous  or  void,  or  subject 
the  party  procuring  it  to  an  action  for  damages  thereby  inflicted.  Where 
the  jurisdiction  of  the  court  is  made  to  depend  upon  the  existence  of 
some  fact  of  which  there  is  an  entire  absence  of  proof,  it  has  no  au- 
thority to  act  in  the  premises ;  and  if  it,  nevertheless,  proceeds  and  en- 
tertains jurisdiction  of  the  proceeding,  all  of  its  acts  are  void,  and  afford 
no  justification  to  the  parties  instituting  them  as  against  parties  injuri- 
ously affected  thereby.'  But  if  the  facts  presented  to  the  court  call 
upon  it  for  the  exercise  of  judgment  and  reason,  upon  evidence  which 
might  in  its  consideration  affect  different  minds  differently,  a  judicial 
question  is  presented,  which,  however  decided,  does  not  render  either 
party  or  the  court  making  it  liable  for  the  consequences  of  its  action." 
Fischer  v.  Langbein,  103  N.  Y.  84;  8  N.  E.  Rep.  251,  254. 

^  People  V.  Kelly,  24  N.  Y.  74 ;  Easton  v.  State,  39  Ala.  551 ;  87  Am. 
Dec.  49 ;  In  re  Shortridge,  34  Pac.  Rep.  227. 


496      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

the  cases,  that  in  this  country  legislative  bodies  are  not 
courts,  possessing  the  general  power  to  punish  for  con- 
tempt, and  that  the  courts  are  the  final  arbitrators  in  all 
cases  afiecting  the  liberty  of  the  citizen.^ 

But  the  power  of  legislative  bodies  to  punish  their  own 
members  by  expulsion,  as  well  as  to  determine  the  election 
and  qualification  of  their  members,  is  generally  held  to  be 
exclusive,  and  not  subject  to  review  by  the  courts,  and 
expulsion  may  be  a  punishment  for  con-tempt,  and  there- 
fore not  subject  to  review  or  inquiry.^ 

In  some  of  the  states,  power  to  punish  for  contempt  is 
given  by  the  constitution  to  legislative  bodies  in  certain 
enumerated  cases.  And  the  power  extended  to  other  per- 
sons than  their  own  members.^  But  no  such  grant  of 
power  exists  in  favor  of  the  congress  of  the  United  States, 
except  as  to  its  own  members.* 

Where  the  offense  is  committed  in  the  presence  of  or  so 
near  the  court  or  judge  as  to  obstruct  the  administration 
of  justice,  the  court  has  jurisdiction  to  punish  the  offender 
without  notice.*  But  the  party  charged  must  be  given  an 
opportunit}'^  to  explain  and  defend.^ 

The  facts  recited  in  the  order  of  commitment,  or  in  the 
judgment,  in  such  cases,  are  conclusive  in  case  of  a  collat- 
eral attack.^  So,  in  the  absence  of  a  showing  in  the  rec- 
ord to  the  contrary,  where  the  proceeding  was  before  a 
court  of  general  jurisdiction,  the  existence  of  jurisdic- 
tional facts  will  be  presumed.*     So  it  is  held  that  the  find- 

^  Kilbourn  v.  Thomson,  103  U.  S.  168 ;  Burnham  v.  Morrissey,  14  Gray, 
226  ;  74  Am.  Dec.  676. 

^  Cooley  Const.  Lim.,  5  ed.  160. 

3  Speakership,  etc.,  15  Colo.  520 ;  25  Pac.  Rep.  707. 

*  Kilbourn  v.  Thomson,  103  U.  S.  168. 

=  In  re  Terry,  128  U.  S.  289;  9  Sup.  Ct.  Rep.  77;  Myers  v.  State,  46 
Ohio  St.  473 ;  22  N.  E.  Rep.  43. 

«  Ex  parte  Savin,  131  U.  S.  267  ;  9  Sup.  Ct.  Rep.  699. 

'  In  re  terry,  128  U.  S.  289 ;  9  Sup.  Ct.  Rep.  77 ;  Ex  parte  Acock,  84 
Cal.  50;  23  Pac.  Rep.  1029  ;  Ex  parte  Sternes,  77  Cal.  156  ;  19  Pac.  Rep. 
275. 

8  State  V.  Becht,  23  Minn.  411 ;  Ex  parte  Ah  Men,  77  Cal.  198 ;  19  Pac. 
Rep.  380 ;  Ex  parte  Sternes,  77  Cal.  156  ;  19  Pac.  Rep.  275. 


CONTEMPTS.  497 

ings  by  the  court  of  jurisdictional  facts  are  conclusive  in 
case  of  a  collateral  attack.^ 

A  different  rule  prevails  in  case  of  a  contempt  commit- 
ted out  of  the  presence  of  the  court.  In  such  cases,  an 
accusation  is  necessary,  as  we  have  shown  above,  and  no- 
tice must  be  given  the  accused  and  an  opportunity  afforded 
him  to  defend.  But  the  practice  as  to  the  manner  in' 
which  the  accusation  shall  be  made  and  notice  given  is  not 
uniform,  nor  is  the  form  material,  except  the  same  be 
fixed  by  statute,  so  that  the  party  be  given  a  fair  oppor- 
tunity to  confess,  deny,  or  explain  the  charge.^ 

This  may  be  done,  usually,  by  an  order  to  show  cause, 
or  by  an  attachment  to  arrest  the  accused.^  But  the  pro- 
ceedings required  are  usually  provided  for  by  statute.  If 
the  procedure  is  not  provided  for  by  statute,  the  court  may 
adopt  such  mode  of  bringing  the  accused  before  the  court, 
and  of  trying  the  contempt,  as  it  deems  proper,  subject  to 
the  requirement  that  the  person  charged  be  given  an  op- 
portunity for  explanation  and  defense.*  And  where  the 
practice  is  regulated  by  statute,  strict  conformity  to  its  re- 
quirements may  be  waived  by  the  person  accused.^ 

'  Ex  parte  Sternes,  77  Cal.  156 ;  19  Pac.  Rep.  275  ;  In  re  Deaton,  105 
N.  Car.  59 ;  11  S.  E.  Rep.  244. 

"  In  re  Cheeseman,  49  N.  J.  Law,  115 ;  6  Atl.  Rep.  513. 

^  Albany  City  Bank  v.  Schermerhorn,  9  Paige,  372 ;  38  Am.  Dec.  551. 

*  Ex  parte  Savin,  131  U.  S.  267  ;  9  Sup.  Ct.  Rep.  699. 

5  In  re  Cheeseman,  49  N.  J.  Law,  115 ;  6  Atl.  Rep.  513 ;  Ex  parte  Berg- 
man, 3  Wyo.  396 ;  26  Pac.  Rep.  914. 

"  Counsel  further  contends  that  the  proceedings  of  the  court  below 
should  be  annulled,  because  there  does  not  seem  to  have  been  any  affi- 
davit of  the  facts  as  a  foundation  for  the  rule  to  show  cause.  This  is 
not  now  a  sufficient  reason  for  reversal.  No  doubt,  the  ordinary  course 
of  practice  in  such  cases  in  courts  of  law  is  that  an  affidavit  of  the  facts 
should  first  be  presented ;  then  that  a  rule  should  be  entered  requiring 
the  alleged  offender  to  show  cause  why  he  should  not  be  attached  for 
contempt;  then,  if  good  cause  be  not  shown,  that  an  attachment  should 
issue,  and  the  accused,  on  being  brought  in,  should  be  either  held  to 
bail,  or  committed  to  answer  interrogatories ;  then  that  interrogatories 
should  be  exhibited  and  answered ;  and  thereupon,  according  as  his  an- 
swers confess  or  deny  his  guilt,  he  should  be  punished  or  discharged. 
But  the  practice  has  not  been  uniform.  Sometimes  a  rule  to  show  cause 
32 


498      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

It  has  been  held  that  the  jurisdictional  facts  necessary 
to  legalize  a  conviction  for  contempt  in  the  superior  courts 
of  law  are,  first,  that  matters  constituting  a  contempt 
should  appear  to  the  court  to  be  true;  and,  secondly,  that 
the  party  charged  with  contempt  should  have  a  fair  op- 
portunity to  confess  or  deny  those  matters;  and  that  out- 
side of  these  facts,  the  steps  to  be  taken  are  matters  of 
practice  only.^ 

The  fact  that  the  party  accused  may  be  proceeded  against 
for  the  same  oftense,  by  indictment  or  information,  does  not 
afiect  the  power  of  the  court  to  punish  for  contempt.^ 

The  power  to  punish  for  contempt  is  exclusive  in  the 
court  against  which  the  offense  is  committed.^  And  this 
applies  to  cases  removed  from  state  to  federal  courts.  A 
federal  court  can  not,  after  removal,  punish  for  a  contempt 
committed  against  the  state  court  before  removal.* 

has  been  allowed  without  an  affidavit,  on  a  mere  suggestion ;  sometimes 
an  attachment  has  issued  without  a  rule  to  show  cause ;  sometimes  pun- 
ishment has  been  inflicted  forthwith,  on  the  offender's  confession  when 
brought  in  by  writ,  without  interrogatories;  and  sometimes,  as  in  Mc- 
Quade  v.  Emmons,  38  N.  J.  Law,  397,  the  penalty  has  been  imposed  on 
the  offender's  admissions  made  under  the  original  rule,  without  either 
writ  or  interrogatories.  So  that  these  various  steps  are  manifestly  not 
jurisdictional,  except  to  the  extent  of  laying  before  the  court  matters 
which  constitute  a  contempt,  and  affording  to  the  party  accused  a  fair 
opportunity  of  denying  or  confessing  their  truth.  In  the  present  case, 
the  appellant,  on  the  return  of  the  rule  to  show  cause,  filed  his  affidavit 
declaring  the  truth  of  all  the  matters  alleged  in  the  rule  as  the  basis  for 
its  allowance;  and,  although  the  consideration  of  the  cause  was  then 
adjourned  from  term  to  term,  yet  the  appellant  never  intimated  that  an 
affidavit  should  have  been  presented  before  the  rule  was  granted,  or 
that  he  was  entitled  to  have  an  attachment  issue  or  interrogatories  filed, 
or  that  the  rule  should  be  discharged  for  want  thereof ;  and,  even  after 
sentence  was  pronounced,  he  obtained  leave  to  amend  his  affidavit,  but 
did  not  complain  of  any  irregularity  or  illegality  in  the  proceedings. 
Under  these  circumstances,  the  objection  now  made  can  not  be  sus- 
tained."    In  re  Cheeseman,  49  N.  J.  Law,  115;  G  Atl.  Rep.  513,  517. 

*  In  re  Cheeseman,  49  N.  J.  Law,  115;  6  Atl.  Rep.  513. 

^  Ex  parte  Bergman,  3  Wyo.  396 ;  26  Pac.  Rep.  914 ;  Ex  parte  Savin, 
131  U.  S.  267 ;  9  Sup.  Ct.  Rep.  699. 

'  Kirk  V.  Milwaukee,  etc.,  Co.,  26  Fed.  Rep.  501 ;  Williamson's  Case, 
26  Pa.  St.  9;  67  Am.  Dec.  374;  State  v.  Thurmond,  37  Tex.  340. 

*  Kirk  V.  Milwaukee,  etc.,  Co.,  26  Fed.  Rep.  501.    ■ 


I 


CONTEMPTS.  499 

The  sole  power  of  the  federal  courts  to  punish  for  contempt 
is  derived  from  the  statute.^  But  this  would  not  be  so  if  the 
statute  did  not  expressly  vest  the  courts  with  such  power 
to  punish  for  contempt  as  would  belong  to  them  inher- 
ently.^ In  other  words,  the  statute  is  not  necessary  to  the 
exercise  of  such  power  by  the  federal  courts.  But  the 
statute  is  effective  to  limit  the  court  to  such  jurisdiction' 
as  the  courts  would  possess  without  it,  and  to  such  other 
acts  as  are  enumerated  in  the  statute,  constituting  indirect 
contempts.  And  this  power,  thus  limited  by  act  of  con- 
gress, can  not  be  extended  or  increased  by  state  laws.^ 
But  whether  the  power  of  the  supreme  court  of  the  United 
States,  which  derives  its  powers  from  the  constitution,  can 
be  limited  by  statute,  has  been  questioned.*  And  certainly 
its  powers  could  not  be  so  limited  if  the  statute  has  the 
effect  to  take  from  it  any  jurisdiction  conferred  upon  it  by 
the  constitution.  But  it  does  not  seem  to  have  that  effect, 
as  it  appears  to  be  broad  enough  to  allow  the  exercise  of 
any  powers  respecting  contempts  that  could  be  exercised 
by  virtue  of  the  constitution. 

It  is  held  that  the  statute  does  not  embrace  territorial 
courts.^ 

The  question  whether  inferior  courts  have  inherent 
power  to  punish  for  contempt  or  not  is  one  about  which 
courts  have  differed.  But  at  the  present  day  it  is  settled 
by  the  great  weight  of  authority  that  the  power  is  not 
confined  to  superior  courts.^     But   it   has   been    held  in 

^  Kirk  V.  Milwaukee,  etc.,  Co.,  26  Fed.  Rep.  501 ;  Ex  parte  Robinson, 
19  Wall.  505;  Ex  parte  Savin,  131  U.  S.  267;  9  Sup.  Ct.  Rep.  699. 
""  Rev.  Stat.  U.  S.,  sec.  725. 
3  Kirk  V.  Milwaukee,  etc.,  Co.,  26  Fed.  Rep.  501. 

*  Ex  parte  Robinson,  19  Wall.  505. 

*  Territory  v.  Murray,  7  Mont.  251 ;  15  Pac.  Rep.  145. 

^  Ante,  sec.  27;  Clark  v.  People,  Breese  (111.),  340;  12  Am.  Dec.  177, 
178,  note;  In  re  Monroe,  46  Fed.  Rep.  52;  In  re  Deaton,  105  N.  Car.  59; 
11  S.  E.  Rep.  244;  State  v.  Newton,  62  Ind.  517;  Swafford  v.  Berrong,  84 
Ga.  65 ;  10  S.  E.  Rep.  593 ;  Whitcomb's  case,  120  Mass.  118 ;  21  Aui.  Rep. 
502. 


500      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

some  of  the  cases  that  an  inferior  court  has  no  power  to 
punish  except  for  a  direct  contempt.^  In  some  the  question 
is  made  to  turn  upon  whether  the  court  is  one  of  record  or 
not.^  And  in  others  it  is  held  that  they  have  no  jurisdiction 
except  such  as  is  expressly  conferred  upon  them  by  statute.^ 
The  latter  proceed  upon  the  theory,  however,  that,  con- 
ceding that  a  justice  of  the  peace  had  the  inherent  power, 
at  common  law,  the  same  had  been  taken  away  by  statute 
except  in  the  cases  enumerated  in  the  statute.  But  this  is 
equivalent  to  holding  that  no  such  inherent  power  exists 
in  such  courts ;  for,  if  it  does  exist,  it  is  not  within  the 
power  of  the  legislature  to  take  it  away  entirely,  although 
its  exercise  may  be  regulated,  as  we  have  seen.  The  case 
cited  in  which  this  distinction  is  made  is  not  in  line  with 
the  great  weight  of  authority  on  the  subject,  certainly, 
and  the  decision  was  rendered  by  a  divided  court. 

So  far  as  relates  to  justices  of  the  peace,  the  discrepancy 
in  the  decisions  results  very  largely,  it  is  believed,  from  the 
difference  in  the  general  powers  and  functions  of  such 
officer  at  common  law  and  under  the  codes  and  statutes 
of  the  states  in  this  country.  At  common  law  the  power 
to  punish  for  contempt  was  denied  to  justices  of  the  peace. 
But  then  justices  of  the  peace  were  regarded  and  treated 
as  ministerial  and  not  judicial  officers.*  At  the  present 
day,  in  most  of  the  states,  their  duties  are  materially  differ- 
ent in  most,  if  not  all,  of  the  states.  They  exercise  the 
functions  and  duties  of  a  court,  and  in  most  of  the  states 
are  held  to  be  courts  of  record.* 

Except  in  case  of  legislative  bodies,  the  power  to  punish 
for  contempt  belongs  to  courts  and  judges  alone.''     The 

'  Ante,  sec.  27 ;  Clark  v.  People,  12  Am.  Dec.  181,  note. 

^  Ante,  sees.  6,  27 ;  Rhinehart  v.  Lance,  43  N.  J.  Law,  311 ;  39  Am.  Rep. 
592. 

2  Rutherford  v.  Holmes,  66  N.  Y.  368;  Watson  v.  Nelson,  69  N.  Y.  536; 
Albright  v.  Lapp,  26  Pa.  St.  99  ;  67  Am.  Dec.  402. 

*  In  re  Mason,  43  Fed.  Rep.  510,  515 ;  Matter  of  Kerrigan,  33  N.  J. 
Law,  344 ;  Rhinehart  v.  Lance,  43  N.  J.  Law,  311  ;  39  Am.  Rep.  592. 

5  Ante,  sees.  6,  7;  Whitcomb's  case.  120  Mass.  118;  21  Am.  Rep.  502. 

*  Langenberg  v.  Decker,  131  Ind.  471 ;  31  N.  E.  Rep.  190;  In  re  Mason, 
43  Fed.  Rep.  510;  Burtt  v.  Pyle,  89  Ind.  398;  Matter  of  Kerrigan,  33  N. 
J.  Law,  344. 


CONTEMPTS.  501 

power  can  not  be  conferred  by  the  legislature  upon  other 
than  judicial  officers  or  bodies.^ 

It  is  held,  however,  that  under  a  constitution  which  de- 
clares that  the  judicial  power  is  vested  in  such  tribunals 
as  are  created  by  the  constitution,  and  such  other  inferior 
courts  as  are  or  may  be  established  by  law,  and  such  per- 
sons as  are  or  may  be  specially  invested  with  powers  of  a 
judicial  nature,  where  the  charter  of  a  town  constituted 
its  town  council  a  court  with  power  to  punish  offenders 
against  the  laws  of  the  town,  such  town  council  had  power 
to  punish  for  contempt.^  But  the  general  rule  is  that  a 
town  council  or  common  council  of  a  city,  has  no  power 
to  punish  for  contempt.^ 

As  to  the  power  of  notaries  public,  and  like  officers, 
authorized  to  take  depositions,  to  punish  a  witness  for 
contempt  in  refusing  to  obey  subpenas  issued  by  them,  the 
authorities  are  not  agreed.*  This  depends  upon  the  ques- 
tion, whether  such  officers  so  far  represent  the  court  as  to 
constitute  them  judicial  officers  vested  with  such  power. 
Independent  of  statute  conferring  such  power  upon  them, 
it  is  pretty  well  settled  that  they  do  not  possess  it.^  But 
in  some  of  the  states  the  power  is  expressly  conferred  by 
statute,  and  has  been  upheld.®  Whether  such  power  can 
lawfully  be  conferred  upon  him  by  statute,  is  at  least  ques- 
tionable. It  is  believed,  however,  that  it  may  properly  be 
conferred,  at  least  so  far  as  to  authorize  such  officer  to  en- 
force obedience  to  a  subpena  to  procure  a  deposition  that 
he  is  authorized  to  take. 

It  is  apparent  from  the  later  decisions  on  the  subject 
that  the  power  to  punish  has  been  greatly  extended,  as  re- 
spects the  courts  and  tribunals  which   may  exercise  the 

'  Langenberg  v.  Decker,  131  Ind.  471 ;  31  N.  E.  Rep.  190 ;  Whitcomb's 
case,  120  Mass.  118 ;  21  Am.  Rep.  502. 

^  8wafford  v.  Berrong,  84  Ga.  65 ;  10  S.  E.  Rep.  593. 

'  Whitcomb's  case,  120  Mass.  118;  21  Am.  Rep.  501. 

*  Whitcomb's  Case,  120  Mass.  118;  21  Am.  Rep.  502;  Lezinsky  v.  Su- 
perior Court,  72  Cal.  510;  14  Pac.  Rep.  104. 

^  Ex  parte  Mallinkrodt,  20  Mo.  493. 

*In  re  Abeles,  12  Kan.  451;  Ex  parte  Mallinkrodt,  20  Mo.  493;  Ex 
parte  McKee,  18  Mo.  599. 


502      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

power,  and  has,  as  a  rule,  been  recognized  in  all  courts 
and  tribunals  exercising  judicial  functions,  no  matter  what 
their  grade  or  the  limitations  placed  upon  their  jurisdic- 
tion. 

The  fact  that  the  court  has  jurisdiction  of  the  case  in 
which  the  contempt  is  charged  to  have  been  committed, 
does  not  necessarily  give  it  jurisdiction  in  the  contempt 
proceedings.  Its  jurisdiction  depends  upon  the  facts  al- 
leged or  proved,  or  the  facts  known  to  the  court  by  reason 
of  the  alleged  offense  having  been  committed  in  its  pres- 
ence, which  may  or  may  not  be  such  as  to  give  the  court 
jurisdiction  to  punish.^ 

To  this  extent  the  contempt  proceedings  must  be  treated 
as  distinct  from  the  original  action.^ 

There  is  a  difference,  however,  between  what  may  be 
denominated  criminal  contempts  and  such  as  are  civil  in 
their  nature  and  enforced  in  whole,  or  in  part,  for  the  pro- 
tection or  benefit  of  a  party  to  the  action  ;  or,  in  other 
words,  to  enforce  a  civil  remedy.' 

As  to  the  former  they  are  essentially  criminal  actions  to 
be  prosecuted  in  the  name  of  the  state  or  of  the  United 
States,  as  the  case  may  be ;  *  but  not  criminal  cases  within 
the  meaning  of  constitutional  provisions  guaranteeing  the 
right  of  trial  by  jury  and  similar  provisions.^ 

It  is  held  that  where  the  court  has  a  law  and  equity  side 
and  the  suit  is  in  chancery,  the  contempt  proceeding 
growing  out  of  it  must,  after  the  attachment  or  rule  to 
show  cause  is  returned,  be  placed  upon  the  law  docket, 

1  Rutherford  v.  Holmes,  66  N.  Y.  368. 

» In  re  Pierce,  44  Wis.  411,  420;  Williamson's  case,  26  Pa.  St.  9;  67 
Am.  Dec.  374;  Worden  v.  Searls,  121  U.  S.  14;  7  Sup.  Ct.  Rep.  814; 
State  V.  Irwin,  30  W.  Va.  404;  4  S.  E.  Rep.  413;  New  Orleans  v.  New 
York  M.  S.  Co.,  20  Wall.  387. 

'  State  V.  Earl,  41  Ind.  464;  In  re  Pierce,  44  Wis.  411,  422;  State  r. 
Becht,  23  Minn.  411 ;  People  v.  Court  of  Oyer  and  Terminer,  101  N.  Y. 
447;  4  N.  E.  Rep.  259;  Ex  parte  Robertson,  27  Tex.  App.  628  ;  11  S.  W. 
Rep.  669;  Langdon  v.  Judges,  76  Mich.  358 ;  43  N.  W.  Rep.  310. 

*  Whittem  v.  State,  36  Ind.  196;  State  v.  Irwin,  30  W.  Va.  404 ;  4  S.  E. 
Rep.  413 ;  Fischer  v.  Hays,  6  Fed.  Rep.  63. 

*  State  V.  Becht,  23  Minn.  411 ;  Wyatt  v.  People,  17  Colo.  252;  28  Pac. 
Rep.  961 ;  Garrigus  v.  State,  93  Ind.  239. 


CONTEMPTS.  503 

and  that  the  chancery  side  of  the  court  can  have  no  juris- 
diction over  it.^  But  in  some  of  the  states,  it  is  held  to  be 
a  part  of  the  original  case  and  not  a  separate  proceeding.^ 

The  want  of  jurisdiction  of  the  court  to  try  the  original 
action,  or  make  the  order  which  is  alleged  to  have  been 
violated,  may  afi'ect  the  jurisdiction  of  the  court  in  the 
contempt  proceeding  very  materially.  If  the  alleged  con* 
tempt  consists  in  the  failure  to  obey  an  order  of  the  court, 
or  other  violation  of  it,  and  the  court  has  no  jurisdiction 
to  make  the  order  alleged  to  have  been  violated,  there  can 
be  no  power  to  punish  for  the  alleged  contempt,  because 
none  has  been  committed.^  And  where  the  alleged  con- 
tempt consists  in  disobeying  or  violating  the  process  of 
the  court,  such  process  must  be  legal  or  there  can  be  no 
contempt.* 

In  case  of  constructive  contempts,  a  defendant  may  in  a 
court  of  law  purge  himself  of  the  contempt  by  a  sworn 
denial  of  the  facts  alleged  against  him,  and  in  such  case 
no  further  proceedings  against  him  can  be  had.*  A  differ- 
ent rule  prevails  in  chancery.^ 

It  is  the  policy  of  the  courts  not  to  extend  the  proceed- 
ing for  contempt  to  cases  not  coming  within  the  estab- 
lished rules  as  to  what  shall  constitute  such  contempts.'^ 

A  court  can  only  punish  for  a  violation  of  its  own  pro- 
cess. Therefore  it  is  held  that  a  refusal  to  obey  a  sub- 
pena  issued  by  a  notary  public  for  the  taking  of  a  deposi- 
tion can  not  be  punished  as  a  contempt  of  the  court  in 
which  the  action  in  which  the  deposition  is  to  be  taken  is 
pending.^  But  provision  is  made  in  some  of  the  states  by 
which  the  notary,  or  other  officer  taking  the  deposition, 

*  State  V.  Irwin,  30  W.  Va.  404 ;  4  S.  E.  Rep.  413. 

'  Ex  parte  Ah  Men,  77  Cal.  198 ;  19  Pac.  Rep.  380. 
'  Walton  V.  Beveling,  61  111.  201 ;  Piper  v.  Pearson,  2  Gray,  120;  61  Am. 
Dec.  438,  442;  Ex  parte  Brown,  97  Cal.  83 ;  31  Pac.  Rep.  840. 

*  In  re  Monroe,  46  Fed.  Rep.  52. 

*  Burke  v.  State,  47  Ind.  528;  State  v.  Earl,  41  lud.  464;  4  Blk.  Com. 
*287. 

«  Burke  v.  State,  47  Ind.  528  ;  4  Blk.  Com.  *287. 

'  Haskett  v.  State,  51  Ind.  176. 

^  Lezinsky  r.  Sn]ierior  Court,  72  Cal.  510 ;  14  Pac.  Rep.  104. 


504      COMxMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

may  apply  to  the  court  for  an  order  requiring  the  witness 
to  obey  his  subpena,  and  if  such  order  is  made,  a  failure 
to  comply  with  it  may  be  punished  as  a  contempt. 

Where  provision  is  made  authorizing  the  court  to  strike 
out  the  pleading  of  a  party  for  a  failure  to  appear  and  tes- 
tify, it  must  appear  that  the  party  was  duly  served  with 
process  issued  by  some  proper  court  or  officer.^ 

It  is  held  that  a  court  must,  where  the  offense  is  com- 
mitted in  the  presence  of  the  court,  proceed  to  punish 
without  delay,  or  it  will  lose  jurisdiction  to  punish  at  all.^ 

The  rendition  of  final  judgment  terminates  the  juris- 
diction of  the  court,  as  in  other  cases,  except  to  enforce 
the  judgment.^ 

73.  Divorce. — In  the  early  history  of  England  divorces 
were  granted  by  act  of  Parliament.''  And  the  right  of 
legislative  bodies  to  grant  divorces,  in  the  absence  of  any 
constitutional  provision  against  it,  has  been  recognized  and 
upheld  in  this  country.^  But  the  power  to  determine 
w^hether  a  divorce  should  be  granted  or  not  is  essentially 
judicial  in  its  nature  and  should  be  committed  to  the 
courts  alone.^  And  so  it  has  been,  with  very  few  excep- 
tions, in  the  diiFerent  states.^  And  where  divorces  by 
legislative  bodies  have  been  upheld  the  exercise  of  the 
power  has  been  regarded  as  judicial  in  its  nature.® 

'  Bisb  V.  Beatty,  111  Ind.  403;  12  N.  E.  Rep.  523;  White  v.  Morgan, 
119  Ind.  338;  21  N.  E.  Rep.  968. 

»  In  re  Foote,  76  Cal.  543 ;  18  Pac.  Rep.  678. 

'  Barry  v.  Superior  Court,  91  Cal.  486;  27  Pac.  Rep.  763. 

*  Sharon  v.  Sharon,  67  Cal.  185,  190;  7  Pac.  Rep.  456,  635;  8  Pac.  Rep. 
709;  Maynard  v.  Hill,  125  TT.  S.  190  ;  8  Sup.  Ct.  Rep.  723  ;  1  Bishop  Mar. 
&  Div.,  sec.  662. 

5  Doughty  V.  Doughty,  28  N.  J.  Eq.  581,  584 ;  Maynard  v.  Hill,  125  U. 
S.  190;  8  Sup.  Ct.  Rep.  723;  Jones  v.  Joues,  11  Sou.  Rep.  11;  Cooley 
Const.  Lim.  'p.  109;  1  Bishop  Mar.  &  Div.,  sec.  664. 

«  Maynard  v.  Hill,  125  U.  S.  190;  8  Sup.  Ct.  Rep.  723;  Jones  v.  Jones, 
11  Sou.  Rep.  11;  Cooley  Const.  Lim.  ■■p.  109;  In  re  Higbee,  4  Utah,  19: 
5  Pac.  Rep.  693;  Sparhawk  v.  Sparhawk,  116  Mass.  315. 

^  Cooley  Const.  Lim.  *p.  110;  1  Bishop  Mar.  &  Div.,  sec.  680. 

8  In  re  Higbee,  4  Utah,  19 ;  5  Pac.  Rep.  693 ;  Jones  v.  Jones,  12  Pa.  St. 
350;  51  Am.  Dec.  611. 


DIVORCE.  505 

A  special  statute  authorizing  a  court  to  grant  a  divorce 
between  individuals  named,  where  the  jurisdiction  has 
been  by  the  general  law  committed  to  the  courts,  and 
where  under  such  general  law  a  divorce  could  not  be  de- 
creed, is  unconstitutional.^  So  a  statute  providing  that 
divorces  from  bed  and  board,  theretofore  granted,  should 
be  deemed  and  taken  to  be  and  have  the  force  and  effect^ 
of  absolute  divorces,  was  held  to  be  unconstitutional  and 
void.^ 

In  England  the  jurisdiction  was  formerly  vested  in  the 
ecclesiastical  courts.^  But  at  the  present  time  it  is  com- 
mitted by  statute  to  the  supreme  court,  and  is  exercised  by 
the  probate,  divorce,  and  admiralty  divisions  of  that 
court.* 

In  this  country  the  jurisdiction  is  given  to  different 
courts  in  the  different  states.  And  the  jurisdiction  of  the 
ecclesiastical  courts  in  matters  of  divorce,  although  a  part 
of  the  common  law  of  that  country,  was  not  transmitted 
to  the  ordinary  law  courts  of  this  country.^  But  when  a 
court  is  vested  with  such  jurisdiction  it  is  entitled,  and  it 
is  its  duty,  to  exercise  it  according  to  the  general  princi- 
ples of  the  common  law  on  the  subject,  and  the  practice 
of  the  English  courts,  so  far  as  they  are  suited  to  our 
condition  and  the  general  spirit  of  our  laws,  or  are  modi- 
fied by  statute.^ 

It  is  generally  held  that  the  jurisdiction  is  wholly  stat- 
utory, and  that  without  some  statute  authorizing  it  it  can 
not  be  exercised.^  And  that  the  grant  to  a  court  of  com- 
mon law  and  equity  jurisdiction  does  not  confer  jurisdic- 

^  Simonds  v.  Simonds,  103  Mass.  572 ;  4  Am.  Rep.  576  ;  Jones  v.  Jones, 
11  Sou.  Rep.  11.    See  also  Sparhawk  v.  Sparhawk,  116  Mass.  315. 

^  Sparhawk  v.  Sparhawk,  116  Mass.  315. 

'  Le  Barron  v.  Le  Barron,  35  Yt.  364. 

*Ante,  sec.  3. 

^  Le  Barron  v.  Le  Barron,  35  Vt.  364;  Mangels  v.  Mangels,  6  Mo.  App. 
481. 

"  Hopkins  v.  Hopkins,  39  Wis.  167  ;  Cook  r.  Cook,  56  Wis.  195 ;  14  N. 
W.  Rep.  33;  Birkby  v.  Solomons,  15  III.  120;  Le  Barron  v.  Le  Barron,  35 
Vt.  364. 


506       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

tion  in  divorce  eases/  There  are  cases  that  hold  the 
jurisdiction  to  be  equitable  and  that  it  is  included  in  a 
general  grant  of  jurisdiction  in  equity  cases.^  But  while 
there  are  matters  connected  with  and  incidental  to  the 
granting  of  divorces  that  are  equitable,^  the  mere  power 
to  grant  a  divorce  certainly  does  not  belong  to  the  gen- 
eral jurisdiction  of  a  court  of  chancery/  Such  jurisdic- 
tion is  conferred  upon  courts  of  chancery  by  statute  in 
some  of  the  states,  but  it  is  none  the  less  statutory  juris- 
diction.* 

It  is  held  that  an  action  for  divorce  is  a  civil  proceed- 
ing under  the  code,  and  that  a  grant  of  jurisdiction  "  in 
all  civil  cases,  both  at  law  and  in  equity,"  confers  jurisdic- 
tion in  divorce  cases.^ 

The  rules  afiecting  jurisdiction  in  this  class  of  cases  are 
peculiar.  The  j,urisdiction  includes  the  granting  of  di- 
vorces, the  allowance  of  alimony,  the  determination,  gener- 
ally, of  the  property  rights  of  the  parties,  and  the  custody 
and  maintenance  of  children.  The  three  latter  are  inci- 
dental to  the  jurisdiction  to  grant  the  divorce.^  But  they 
are  not  necessarily  dependent  upon  it.  Jurisdiction  as  to 
these  may  exist  independently  of  the  pendency  of  an  action 
for  divorce,  or  the  power  to  exercise  jurisdiction  in  divorce 
cases.^  This  is  not  so,  however,  in  all  of  the  states.  In 
some  it  is  held  that,  under  their  statutes,  a  claim  for  ali- 
mony is  not  the  subject-matter  of  a  separate  suit,  but  is 
only  auxiliary  to,  or  an  incident  of,  an  action  for  a  divorce.' 

^  Kenyon  v.  Kenyon,  24  Pac.  Rep.  829. 

''  Sharon  v.  Sharon,  67  Cal.  185 ;  7  Pac.  Rep.  456,  635 ;  8  Pac.  Rep.  709 ; 
Lyons  v.  Lyons,  18  Cal.  448. 

*  Laughery  v.  Laughery,  15  Ohio,  404. 

*  Mangels  v.  Mangels,  6  Mo.  App.  481,  484. 

^  Bascom  v.  Bascom,  7  Ohio  (part  2),  126;  Laughery  v.  Laughery,  15 
Ohio,  404. 

«  Ellis  V.  Hatfield,  20  Ind.  101. 

'  Mott  V.  Mott,  82  Cal.  413;  22  Pac.  Rep.  1140. 

8  Galland  v.  Galland,  38  Cal.  265;  Poole  v.  Wilbur,  95  Cal.  339,  342; 
30  Pac.  Rep.  548;  Woods  v.  Waddle,  44  Ohio  St.  449  ;  8  N.  E.  Rep.  297  ; 
Crugom  V.  Crugom,  64  Wis.  253  ;  25  N.  W.  Rep.  5. 

»  Damon  v.  Damon,  28  Wis.  510 ;  Cook  v.  Cook,  56  Wis.  195  ;  14  N.  W. 
Rep.  33. 


DIVORCE.  507 

In  order  to  authorize  the  court  to  render  a  decree  affect- 
ing the  property  of  the  parties,  an  issue  with  reference  to 
it  must  be  presented  by  the  pleadings.^ 

The  means  of  acquiring  jurisdiction  and  the  power  to 
exercise  it  is  different  in  the  divorce  proceeding  proper 
and  the  matters  above  referred  to  as  incidental  to  such 
proceedings,  and  the  court  may  have  jurisdiction  to  deter- 
mine the  question  of  divorce,  and  be  wholly  without  juris- 
diction to  deal  with  these  incidental  matters.^  This  grows 
out  of  the  difference  in  the  nature  of  the  remedies  to  be 
administered  in  each. 

The  power  to  grant  divorces  is  one  that  affects  the  status 
of  the  parties  merely ;  the  action  is  not  personal,  but  is 
the  same  in  legal  effect  as  an  action  in  rem.^  Although  it 
has  been  held  that,  for  some  purposes,  it  is  an  action  upon 
contract.*  But  this  decision,  holding  that  an  action  for 
divorce  is  one  upon  contract,  is  not  in  harmony  with  the 
general  rule  on  the  subject.^  Personal  service  upon  the 
defendant  is  not  necessary,  and  where  such  defendant 
is  a  non-resident,  jurisdiction  may  be  obtained  by  publi- 
cation, or  by  service  out  of  the  state,  which  is  the  same 
in  legal  effect.'^  But  it  is  otherwise  with  reference  to 
the  granting  of  alimony.  The  remedy  here  is  personal, 
and  a  decree  or  judgment  against  a  non-resident  defend- 
ant for  alimony  can  only  be  granted  upon  personal  serv- 
ice, or  an  appearance,  or  other  waiver  of  service.^  But 
a  state  may  authorize  judgments  for  alimony  against  its 

*  Remmington  v.  Superior  Court,  69  Cal.  633;  11  Pac.  Rep.  252. 
'  Cooley  Const.  Lira.,  *  pp.  405,  406. 

'  Roth  V.  Roth,  104  111.  35 ;  44  Am.  Rep.  81;  Ellison  v.  Martin.  53  Mo. 
575 ;  In  re  Newman,  75  Cal.  213  ;  16  Pac.  Rep.  887. 

*  Mott  V.  Mott,  82  Cal.  413;  22  Pac.  Rep.  1140. 

*  Adams  v.  Palmer,  51  Me.  481 ;  Wade  v.  Kalbfleisch,  58  N.  Y.  282  ;  17 
Am.  Rep.  250;  Noel  v.  Ewing,  9  Ind.  37;  Maynard  v.  Hill,  125  U.  S.  190; 
8  Sup.  Ct.  Rep.  723;  1  Bishop  Mar.  &  Div.,  sec.  667. 

«  Pennoyer  v.  Neff,  95  U.  S.  714,  733 ;  Gould  v.  Crow,  57  Mo.  200 ;  Elli- 
son V.  Martin,  53  Mo.  575;  Burlen  v.  Shannon,  115  Mass.  438;  Cooley 
Const.  Lim.,  *  p.  405. 

'  Prosser  v.  Warner,  47  Vt.  667 ;  19  Am.  Rep.  132  ;  Beard  r.  Beard,  21 
Ind.  321 ;  ante,  sec.  13,  p.  42  ;  sees.  14,  32.  33,  38 ;  Pennoyer  v.  Neflf,  95 
U.  S.  714  ;  Ellison  v.  Martin,  53  Mo.  575 ;  Cooley  Const.  Lim.,  *  p.  406. 


508      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

own  citizens  upon  constructive  notice,  where  there  is  no 
constitutional  provision  against  it.^ 

Each  of  the  states  has  the  power  to  determine  the 
status  of  its  citizens,  and  upon  what  service,  and  upon  what 
conditions,  divorces  may  be  granted  as  between  thera.^ 
The  law  of  the  domicile  controls,  with  respect  to  the 
jurisdiction  of  the  court.^  And  decrees  granted,  as  be- 
tween its  own  residents,  are  respected  in  other  states,  both 
because  of  the  provision  of  the  constitution  of  the  United 
States  that  "  full  faith  and  credit  shall  be  given  in  each 
state  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  state,"  *  and  because  of  the  general  princi- 
ple of  comity  between  states  and  nations.* 

In  some  of  the  states  it  is  eo  expressly  provided  by  stat- 
ute.^ The  same  rule  obtains  with  respect  to  the  judgments 
of  courts  of  foreign  countries.'^  And  judgments  are  en- 
forced, generally,  where  the  plaintiff  is  a  resident  of  the  state 

^  Ante,  sees.  13,  14,  32,  33;  Beard  v.  Beard,  21  Ind.  321. 

2  Hubbell  V.  Hubbell,  3  Wis.  662;  62  Am.  Dec.  702;  Cook  v.  Cook,  56 
Wis.  195 ;  14  N.  W.  Rep.  33 ;  Cox  v.  Cox,  19  Ohio  St.  502,  510 ;  2  Am. 
Rep.  415  ;  Prosser  v.  Warner,  47  Yt.  667  ;  19  Am.  Rep.  132  ;  Kinnier  v. 
Kinnier,  45  N.  Y.  535 ;  6  Am.  Rep.  132 ;  Doughty  v.  Doughty,  28  N.  J. 
Eq.  581 ,  584 ;  Beard  v.  Beard,  21  Ind.  321 ;  Strader  v.  Graham,  10  How. 
82,  93;  Hunt  v.  Hunt,  72  N.  Y.  217  ;  28  Am.  Rep.  129;  Sewall  v.  Sewall, 
122  Mass.  156;  23  Am.  Rep.  299;  Gregory  v.  Gregory,  78  Me.  187;  3  Atl. 
Rep.  280;  57  Am.  Rep.  792;  Butler  v.  Washington;  12  Sou.  Rep.  356; 
Cooley  Const.  Lim.,  *  pp.  400-405 ;  2  Bishop  Mar.  &  Div.  137. 

3  Tolen  r.  Tolen,  2  Blkf.  (Ind.)  407;  21  Am.  Dec.  743;  Hood  r.  State, 
56  Ind.  263,  268 ;  26  Am.  Rep.  21 ;  Kinnier  v.  Kinnier,  45  N.  Y.  535  ;  6 
Am.  Rep.  132  ;  Gregory  v.  Gregory,  78  Me.  187 ;  3  Atl.  Rep.  280 ;  57  Am. 
Rep.  792 ;  Thomson  v.  Thomson,  91  Ala.  591 ;  8  Sou.  Rep.  419 ;  Butler  v. 
Washington,  12  Sou.  Rep.  356;  Cooley  Const.  Lim.,  "pp.  400,  401;  2 
Bishop  Mar.  &  Div.,  sec.  138. 

*  Const.  U.  S.,  Art.  IV,  sec.  1 ;  ante,  sec.  23,  p.  127 ;  Gould  v.  Crow,  57 
Mo.  200;  Wakefield  v.  Ives,  35  la.  238;  Gregory  v.  Gregory,  78  Me.  187; 
3  Atl.  Rep.  280,  282,  note ;  57  Am.  Rep.  792  ;  Reed  v.  Reed,  52  Mich.  117 ; 
17  N.  W.  Rep.  720. 

*  Hubbell  V.  Hubbell,  3  Wis.  662;  62  Am.  Dec.  702;  Cox  v.  Cox,  19 
Ohio  St.  502,  510 ;  2  Am.  Rep.  415 ;  Van  Orsdal  v.  Van  Orsdal,  67  la.  35 ; 
24  N.  W.  Rep.  579;  Tolen  v.  Tolen,  2  Blkf.  (Ind.)  407;  21  Am.  Dec.  743; 
Smith  V.  Smith,  10  Sou.  Rep.  248. 

^  Burlen  v.  Shannon,  115  Mass.  438. 

^  Roth  V.  Roth,  104  111.  35 ;  44  Am.  Rep.  81. 


i 


DIVORCE.  509 

in  which  the  divorce  is  granted  and  the  defendant  is  a  non- 
resident, where,  by  the  statute  of  the  state,  the  residence 
of  the  plaintiff  gives  jurisdiction.^  But  this  is  not  uni- 
versally so.  In  some  of  the  states  a  decree  of  divorce 
granted  against  one  of  their  citizens  by  a  court  of  another 
state,  upon  constructive  notice,  is  held  to  be  a  nullity,  in 
the  former,  although  valid  by  the  law  of  the  state  in  which 
the  decree  was  rendered.^ 

And  in  the  states  in  which  this  doctrine  prevails  an 
actual  service  out  of  the  state  has  no  greater  effect  than 
one  by  publication,  and  the  decree  is  alike  invalid  in  either 
case.^  And  this  doctrine  has  been  extended  to  cases  where 
the  defendant  constructively  served  was  not  domiciled  in 
the  state  in  which  the  judgment  was  brought  in  question, 
but  in  a  foreign  country.* 

In  some  of  the  states  jurisdiction  to  grant  a  divorce 
to  a  resident,  where  a  divorce  has  been  granted  his  or  her 
consort  in  another  state,  is  given  by  statute.^     In  other 

^  Cox  V.  Cox,  19  Ohio  St.  502,  510;  2  Am.  Rep.  415;  Burlen  v.  Shan- 
non, 115  Mass.  438 ;  Van  Orsdal  v.  Van  Orsdal,  67  la.  35 ;  24  N.  W.  Rep. 
579;  Wakefield  v.  Ives,  35  la.  238;  Shafer  r.  Bushnell,  24  Wis.  372; 
Thomson  v.  Thomson,  91  Ala.  591 ;  8  Sou.  Rep.  419;  Loker  v.  Gerald,  31 
N.  E.  Rep.  709 ;  Smith  v.  Smith,  10  Sou.  Rep.  248. 

^  Prosser  v.  Warner,  47  Vt.  667;  19  Am.  Rep.  132;  People  v.  Baker, 
76  N.  Y.  78;  32  Am.  Rep.  274;  Doughty  v.  Doughty,  28  N.  J.  Eq.  581; 
Flower  v.  Flower,  42  N.  J.  Eq.  152 ;  7  Atl.  Rep.  669 ;  Gregory  v.  Gregory, 
78  Me.  187 ;  3  Atl.  Rep.  280,  282,  note ;  57  Am.  Rep.  792 ;  De  Meli  v.  De 
Meli,  120  N.  Y.  485;  24  N.  E.  Rep.  996;  In  re  House's  Estate,  14  N.  Y. 
Supl.  275;  Munson  v.  Munson,  14  N.  Y.  Supl.  692;  Williams  v.  Williams, 
130  N.  Y.  193;  29  X.  E.  Rep.  98. 

3  O'Dea  V.  O'Dea,  101  N.  Y.  23 ;  4  N.  E.  Rep.  110 ;  Williams  v.  Williams, 
130  N.  Y.  193;  29  N.  E.  Rep.  98. 

*  O'Dea  V.  O'Dea,  101  N.  Y.  23 ;  4  N.  E.  Rep.  110.  But  see  the  dissent- 
ing opinion  in  this  case. 

'Van  Inwagen  v.  Van  Inwagen,  86  Mich.  333;  49  N.  W.  Rep.  154. 
The  doctrine  that  a  judgment  obtained  in  another  state  again.st  a  non- 
resident upon  constructive  notice  is  a  nullity  has  found  its  strongest 
support  in  New  York,  where  the  courts  have  gone  to  the  fullest  extent 
in  repudiating  the  decrees  of  its  sister  states  under  such  circumstances. 
But  these  cases  are  not  in  line  with  the  decisions  in  other  states,  they 
are  opposed  to  well  settled  principles  of  law  that  should  hold  the  judg- 
ments of  the  courts  of  other  states  as  binding  as  those  of  their  own 
courts,  and  are  unsupported  by  reasons  that  should  have  weight  as 


510      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

cases  a  kind  of  middle  ground  is  taken,  and  it  is  held  that 
as  to  the  resident  plaintifl'  the  decree  is  binding,  fixes  his 
status  and  permits  his  second  marriage,  but  that  the  decree 
has  no  extra  territorial  etiect,  does  not  affect  the  non-resi- 

against  the  well  settled  principles  strongly  upheld  in  other  states,  and 
which  are  maintained  by  its  own  courts  in  cases  other  than  proceedings 
for  divorce.  So  apparent  has  this  become  that  the  doctrine  may  fairly 
be  said  to  be  upheld,  at  this  time,  only  because  it  was  so  decided  in  the 
earlier  cases  and  has  become  the  settled  law  and  policy  of  the  state. 
And  while  submitting  to  it,  as  now  firmly  settled,  some  of  the  judges  of 
that  state  have  not  hesitated  to  say  that  their  reason  revolts  against  it. 
Thus  in  Davis  v.  Davis,  22  N.  Y.  Supl.  191,  192,  Prior,  J.,  says: 
"As  the  marriage  purporting  to  be  dissolved  was  not  celebrated  in 
Massachusetts,  as  the  defendant  in  the  divorce  suit  was  not  domiciled 
in  that  commonwealth,  nor  was  served  with  process  there,  nor  appeared 
in  the  action,  it  results  that,  by  the  law  of  New  York,  the  judgment 
against  her  is  of  no  effect;  that  she  is  still  the  wife  of  the  defendant; 
and  that,  by  necessary  consequence,  his  marriage  with  this  plaintiff  is  a 
nullity.  Mellen  v.  Mellen,  10  Abb.  N.  C.  329;  O'Dea  v.  O'Dea,  101  N.  Y. 
23;  4  N.  E.  Rep.  110;  Jones  v.  Jones,  108  N.  Y.  415;  15  N.  E.  Rep.  707; 
Williams  v.  Williams,  130  N.  Y.  193 ;  29  N.  E.  Rep.  98 ;  De  Meli  v.  De 
Meli,  120  N.  Y.  485;  24  N.  E.  Rep.  996;  People  v.  Baker,  76  N.  Y.  78. 
To  this  conclusion  I  am  compelled,  but  I  am  not  forbidden  to  say,  that 
my  reason  revolts  against  it.  By  the  laws  of  INlassachusetts,  its  court 
had  jurisdiction  of  the  defendant  in  the  divorce  suit,  and  the  decree  of 
divorce  is  valid  and  conclusive.  By  virtue  of  the  supreme  law  of  the 
nation,  'a  decree  in  divorce,  valid  and  effectual  by  the  laws  of  the  state 
where  obtained,  is  valid  and  effectual  in  all  other  states'  (Cheever  v. 
Wilson,  9  Wall.  109) ;  and  yet  I  am  to  declare  this  Massachusetts  judg- 
ment a  nullity.  And  why  ?  Because  the  jurisdiction  of  the  Massachu- 
setts court  rests  solely  on  a  constructive  service  of  process  by  publica- 
tion; and  by  the  law  of  New  York  such  service  is  of  no  avail.  But 
such  constructive  service  of  process  is  the  only  foundation  of  the  juris- 
diction of  this  court  in  the  present  case ;  yet,  by  the  law  of  New  York, 
such  service  gives  jurisdiction  to  its  court,  and  the  judgment  I  am  to 
render  is  not  only  valid,  but  of  so  transcendent  an  efficacy  as  to  impeach 
the  records  and  cancel  the  judicial  proceedings  of  another  state.  In 
reason,  such  service  of  process  should  be  suflBcient  in  both  states  or  in 
neither. 

"Equally  anomalous  will  be  the  effect  of  the  judgment  of  this  court 
on  the  relation  and  rights  of  the  parties.  In  Massachusetts,  not  tiie 
former  spouse,  but  this  plaintiff,  is  the  lawful  wife  of  the  defendant; 
while  in  New  York  the  former  spouse  is  still  the  wife  of  the  defendant, 
and  his  connection  with  the  plaintiff  a  crime.  Indeed,  relying  on  the 
nullity  of  the  Massachusetts  decree,  the  former  wife  has  instituted  here 
an  action  for  divorce  from  the  defendant,  on  the  allegation  that  his  mar- 


DIVORCE.  511 

dent  defendant,  and  permits  him  or  her  to  maintain  an 
action  for  divorce  and  to  recover  alimony,  and  to  deter- 
mine the  propert}'  rights  of  the  parties  in  the  state  of  his 
or  her  domicile/ 

In  still  others  the  decree  is  held  to  be  valid  and  binding 
in  another  state,  upon  the  non-resident  defendant  as  well 
as  the  resident  plaintiff,  so  far  as  it  affects  the  mere  status 
of  the  parties,  but  that  it  can  not  affect  the  rights  of  the' 
parties  as  to  property  situate  in  another  state  or  a  claim 
for  alimony.^  But  it  is  generally  held  that  where  the 
party  appeared  and  made  defense,  the  decree  is  binding, 
not  only  as  to  the  status  of  the  parties,  but  that  it  has  the 
effect  to  put  an  end  to  all  obligations  of  either  party  to  the 
other,  and  to  any  right  which  either  has  acquired  by  the 
marriage,  in  the  other's  property,  whether  situated  within 
the  state  or  not,  unless  the  court,  having  the  authority, 
otherwise  orders  or  decrees.^  And  this  is  held  to  be  so 
where  the  notice  is  constructive  and  there  has  been  no  ap- 
pearance.* Why  this  should  not  be  the  effect  of  a  decree 
so  obtained,  as  well  as  in  case  of  personal  service  or  ap- 
pearance, has  never  been  satisfactorily  explained  in  any  of 
the  cases  holding  to  the  contrary.  If  the  decree  is  valid, 
one  of  its  effects  is  to  determine  the  rights  of  the  parties 
to  property  growing  out  of  the  marriage.  It  does  not  in- 
volve the  rendition  of  a  personal  judgment.  It  is,  or  may 
be,  one  of  the  legal   effects  of  a  decree  of  divorce  without 

riage  with  tliis  plaintiff  is  an  adulterous  association.  The  executive  of 
New  York  may  demand  from  Massachusetts  the  rendition  of  the  de- 
fendant as  a  bigamist ;  but  can  he  be  a  bigamist  whom  Massachusetts 
had  released  from  the  former  marriage  ?  The  absurd  and  mischievous 
consequences  of  the  present  judgment  do  not  relieve  me  from  the 
necessity  of  pronouncing  it ;  but  perhaps  the  exposition  of  them  may 
not  be  amiss  in  the  prevalent  agitation  for  a  uniform  system  of  mar- 
riage and  divorce." 

'  Cook  V.  Cook,  56  Wis.  195;  14  N.  W.  Rep.  33,  443. 

^  Mansfield  v.  Mclntyre,  10  Ohio,  27;  Cox  v.  Cox,  19  Ohio  St.  502;  2 
Am.  Rep.  415;  Cook  v.  Cook.  5(j  Wis.  195  ;  14  N.  W.  Rep.  33;  Woods  v. 
Waddle,  44  Ohio  St.  449;  8  N.  E.  Rep.  297. 

'  Barrett  v.  Failing,  111  U.  S.  523;  4  Sup.  Ct.  Rep.  598;  Barber  v.  Root, 
10  Mass.  260  ;  Roth  v.  Roth,  104  111.  35  ;  44  Am.  Rep.  81. 

*  Gould  V.  Crow,  57  Mo.  201. 


512     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

any  meutiou  of  or  reference  to  property.  There  may  be, 
of  course,  a  direct  adjudication  fixing  the  rights  of  the 
parties  in  the  property,  but  this,  certainly,  is  such  an  ad- 
judication as  maybe  made  upon  constructive  notice  in 
such  a  case. 

The  doctrine  that  a  judgment  can  be  valid  as  to  one 
party  and  not  so  as  to  the  other  is  certainly  an  anomolous 
one  and  must  lead  to  strange  complications.  It  is  believed 
that  there  can  not  in  reason  be  any  such  middle  ground 
upon  this  question.  Such  a  decree  should  be  held  to  be 
void  as  to  both  parties  as  it  is  in  some  of  the  states,  or  valid 
as  to  both  as  it  is  in  others,  so  far  as  it  affects  the  status  of 
the  parties.  And  the  clear  weight  of  the  authorities  is 
certainly  to  the  effect  that  to  this  extent  the  decree  is  valid 
as  to  both  the  parties. 

A  decree  for  the  custody  of  the  children  stands  upon 
the  same  footing  as  the  decree  of  divorce  respecting  its 
validity.^  But  a  decree  affecting  the  custody  of  the  chil- 
dren is  only  binding  while  they  are  within  the  jurisdiction.^ 

In  some  cases  it  is  held  that  a  judgment  in  favor  of  the 
resident  husband  is  binding  upon  the  non-resident  wife, 
on  the  ground  that  the  domicile  of  the  wife  follows  that 
of  the  husband,  and  that,  therefore,  her  legal  residence  is 
in  the  state  of  his  residence,  and  the  courts  of  the  state 
have  jurisdiction  over  her  in  an  action  for  divorce.^  But 
this  is  not  the  generally  accepted  doctrine  on  the  subject 
as  will  appear  further  on  in  this  section.  The  better  rule 
is  that,  for  the  purposes  of  a  divorce,  the  actual  residence 
of  the  parties,  who  are  living  separate  and  apart,  must 
control. 

Where  neither  of  the  parties  is  a  resident  of  the  state, 
the  decree  is  void,  although  the  offense  constituting  the 
ground  for  the  divorce  was  committed  within  the  state.* 
In  most  of  the  states  the  residence  of  the  plaintiff  vests 

'  Wakefield  v.  Ives,  35  la.  238.  ^  Cooley  Const.  Lim.,  »p.  405. 

3  Loker  v.  Gerald,  31  N.  E.  Rep.  709. 

*  Bally  V.  Root,  10  Mass.  260  ;  Van  Fossen  v.  The  State,  37  Ohio  St.  317 ; 
41  Am.  Rep.  507  ;  Litowich  v.  Litowich,  19  Kan.  451 ;  27  Am.  Rep.  145; 
Hood  V.  State,  56  Ind.  263 ;  Reed  v.  Reed,  52  Mich.  117  ;  17  N.  W.  Rep. 


DIVORCE.  513 

the  court  with  jurisdiction,  although  the  defendant  has 
never  been  a  resident  of  the  state,  and  although  the  acts 
constituting  the  cause  for  divorce  were  committed  within 
a  foreign  jurisdiction.^  And  for  the  purpose  of  bringing 
or  defending  a  divorce  suit,  the  wife  may  acquire  a  resi- 
dence distinct  from  that  of  her  husband.^  This  is  denied 
in  some  of  the  cases.  But  it  is  undoubtedly  supported  by^ 
the  great  weight  of  authority.  In  some  cases  it  is  held 
that  the  Avife  may  maintain  her  residence  on  the  domicile 
of  her  husband,  although  not  an  actual  resident  herself,* 
or  without  other  proof  than  that  her  husband  is  domiciled 
within  the  state.*  But  the  better  settled  rule  is  that  the 
residence  of  the  plaintiff,  to  give  jurisdiction,  must  be 
not  mere  legal  residence,  but  actual  residence  within  the 
state.^ 

It  follows  that  a  non-resident  party  can  not  maintain 
the  action,  under  such  a  statute,  although  the  defendant  is 
a  resident  and  the  marriage  was  solemnized,  and  the  cause 
for  divorce  arose,  within  the  state.^     The  residence  must 

720  ;  Smith  v.  Smith,  19  Neb.  706  ;  28  N.  W.  Rep.  296  ;  State  v.  Arming- 
ton,  25  Minn.  29 ;  Watkins  v.  Watkins,  125  Ind.  163 ;  25  X.  E.  Rep.  175. 
1  Manley  v.  Manley,  3  Pinney  (Wis.),  390 ;  Hubbell  v.  Hubbell,  3  Wis. 
662;  62  Am.  Dec.  702;  Cheever  v.  Wilson,  9  Wall.  108;  Ewing  r.  Ewing, 
24  Ind.  468;  Tolen  v.  Tolen,  2  Blkf.  (Ind.)  407  ;  21  Am.  Dec.  743;  Way 
V.  Way,  64  111.  406 ;  Thomson  v.  Thomson,  91  Ala.  591 ;  8  Sou.  Rep. 
419;  Butler  v.  Washington,  12  Sou.  Rep.  356;  Smith  v.  Smith,  10  Sou. 
Rep.  248. 

*  Craven  v.  Craven,  27  Wis.  418;  Cheever  v.  Wilson,  9  Wall.  108; 
Harteau  v.  Harteau,  14  Pick.  181;  25  Am.  Dec.  372;  Moffatt  v.  MoflFatt, 
5  Cal.  281 ;  Tolen  v.  Tolen,  2  Blkf.  (Ind.)  407  ;  21  Am.  Dec.  743;  Jenness 
V.  Jenness,  24  Ind.  355;  87  Am.  Dec.  335 ;  Arrington  v.  Arrington,  102  N. 
Car.  491  ;  9  S.  E.  Rep.  200 ;  Champon  r.  Champon,  40  La.  Ann.  28 ;  3 
Sou.  Rep.  397 ;  Smith  v.  Smith,  10  Sou.  Rep.  248;  2  Bishop  Mar.  &  Div., 
sees.  125,  126. 

^  Kashaw  v.  Kashaw,  3  Cal.  312. 

*  Smith  V.  Smith,  19  Neb.  706;  28  N.  W.  Rep.  296 ;  Davis  v.  Davis,  .30 
111.  180;  Ashbaugh  v.  Ashbaugh,  17  111.  476. 

^  Dutcher  v.  Dutcher,  39  Wis.  651 ;  Jenness  v.  Jenness,  24  Ind.  355;  87 
Am.  Dec.  335;  Tipton  v.  Tipton,  87  Ky.  243;  8  S.  W.  Rep.  440;  Wood 
V.  Wood,  54  Ark.  172;  15  S.  W.  Rep.  459;  2  Bishop  Mar.  &  Div.,  sees. 
127,  128. 

«  Dutcher  v.  Dutcher,  39  Wis.  651. 
33 


514      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTIOX. 

be  bona  fide  and  not  for  the  mere  purpose  of  obtaining  a 
divorce,  and  to  remain  only  so  long  as  may  be  necessary 
for  such  purpose.'  But  the  fact  that  a  plaintiffs  desire 
to  obtain  a  divorce  was  the  main  cause  of  his  becoming  a 
resident  of  the  state,  does  not  affect  the  jurisdiction  of  the 
court.^ 

As  to  what  will  constitute  a  sufficient  residence,  see  the 
cases  cited  below.^  Usually  a  residence  for  a  specified  time 
is  required  by  statute,  which  differs  in  the  different  states. 
And  an  allegation  and  proof  of  residence  for  the  time  fixed 
is  necessary.* 

An  admission  by  the  opposite  party  will  not  supply  the 
proof  of  residence  and  give  jurisdiction.^  But  it  is  held 
not  to  be  essential  that  all  of  the  jurisdictional  facts  should 
appear  from  the  plaintiff's  petition,  but  that  it  is  sufficient 
if  they  appear  from  the  whole  record.® 

The  question  whether  the  party  is  or  is  not  a  resident  is 
one  of  fact.'  And  a  finding  upon  it  is  at  least  prima  facie 
evidence  of  the  existence  of  the   necessary  facts  upon  a 

1  Butcher  v.  Dutcher,  39  Wis.  651 ;  Sewall  v.  Sewall,  122  Mass.  156;  23 
Am.  Rep.  299;  Bennett  v.  Bennett,  28  Cal.  600;  Reed  v.  Reed,  52  Mich. 
117;  17  N.  W.  Rep.  720;  Thomson  v.  Thomson,  91  Ala.  591 ;  8  Sou.  Rep. 
419;  Firth  v.  Firth,  24  Atl.  Rep.   916;  Smith  v.  Smith,  10  Sou.  Rep.  248. 

•^  Colburn  v.  Colburn,  70  Mich.  647 ;  38  N.  W.  Rep.  607 ;  Fosdick  v. 
Fosdick,  15  R.  I.  130 ;  23  Atl.  Rep.  140. 

*  Dutcher  v.  Dutcher,  39  Wis.  651 ;  Hall  v.  Hall,  25  Wis.  300;  Codding- 
ton  V.  Coddington,  20  N.  J.  Eq.  263 ;  Ross  v.  Ross,  103  Mass.  575 ;  Way  v. 
Way,  64  111.  406;  Reed  v.  Reed,  52  Mich.  117;  17  N.  W.  Rep.  720; 
De  Meli  v.  De  Meli,  120  N.  Y.  485 ;  24  N.  E.  Rep.  996 ;  Chapman  v.  Chap- 
man, 129  111.  386;  21  N.  E.  Rep.  806;  Haymond  v.  Haymoud,  74  Tex. 
414 ;  12  S.  W.  Rep.  90 ;  In  re  Feyh's  Estate,  5  N.  Y.  Supl.  90 ;  Colburn 
V.  Colburn,  70  Mich.  647;  38  N.  W.  Rep.  607  ;  Larquie  v.  Larquie,  40  La. 
Ann.  457  ;  4  Sou.  Rep.  335 ;  Tipton  v.  Tipton,  87  Ky.  243 ;  8  S.  W.  Rep. 
440 ;  Albee  v.  Albee,  31  N.  E.  Rep.  153;  Firth  v.  Firth,  24  Atl.  Rep.  916; 
2  Bishop  Mar.  &  Div.,  sees.  117,  118. 

*  Bennett  v.  Bennett,  28  Cal.  600  ;  Haymond  v.  Haymond,  74  Tex.  414 ; 
12  S.  W.  Rep.  90;  Firth  v.  Firth,  24  Atl.  Rep.  916;  Powell  r.  Powell,  53 
Ind.  513 ;  Prettyman  v.  Prettyman,  125  Ind.  149 ;  25  N.  E.  Rep.  179. 

^  Prettyman  v.  Prettyman,  125  Ind.  149:  25  N.  E,  Rep.  179. 
«  Smith  V.  Smith,  48  Mo.  App.  612. 
»  Cheever  v.  Wilson,  9  Wall.  108. 


DIVORCE.  515 

collateral  attack.^  But  whether  it  is  conclusive  or  not  the 
authorities  are  not  agreed.  This  question  has  been  con- 
sidered in  another  place.^ 

The  rule  is  the  same  in  actions  for  divorce  as  in  other 
cases  except  that,  on  grounds  of  public  policy,  decrees 
for  divorce  are  sometimes  held  to  be  final,  and  not 
subject  to  subsequent  attack  on  grounds  that  would  be- 
fatal  to  judgments  in  other  cases.^  Thus,  where  a  decree 
has  been  obtained  by  a  fraudulent  showing  as  to  the  resi- 
dence of  the  plaintiff  it  is  held  that  it  can  not  be  set  aside 
on  an  original  bill  at  a  subsequent  term  of  the  court.* 

It  is  upon  this  ground  of  public  policy  that  no  appeal  is 
allowed,  in  many  of  the  states,  in  divorce  cases.^  The  bet- 
ter rule  in  divorce  cases,  as  in  all  other  cases,  is  that  the 
correctness  of  a  finding  as  to  the  residence  of  the  parties, 
necessary  to  give  the  court  jurisdiction,  will  not  be  in- 
quired into,  collaterally,  by  the  courts  of  another  state,  in 
the  absence  of  fraud.^  But,  as  has  been  shown  above, 
there  are  many  decisions  to  the  efiect  that  such  a  finding 
is  not  conclusive,  and  may  be  disproved  by  evidence  out- 
side of  the  record. 

The  general  rule,  supported  by  the  great  weight  of  au- 
thority, is  that  a  decree  of  divorce,  rendered  against  a 
non-resident  on  constructive  notice,  is  subject  to  attack  on 
the  ground  that  it  was  obtained  by  fraud.^     And  the  cases 

'  Cheever  v.  Wilson,  9  Wall.  108  ;  Waldo  v.  Waldo,  52  Mich.  94  ;  17  X. 
W.  Rep.  710 ;  Smith  v.  Smith,  10  Sou.  Rep.  248. 

^  Ante,  sees.  23, 25.  See  also  Gregory  v.  Gregory,  78  Me.  187 ;  3  Atl.  Rep. 
280,  282,  note  ;  Reed  v.  Reed,  52  Mich.  117 ;  17  N.  W.  Rep.  720;  Smith 
V.  Smith,  10  So.  Rep.  248  ;  Neff  v.  Beauchamp,  74  la.  92 ;  36  N.  W.  Rep. 
905. 

^  Parish  v.  Parish,  9  Ohio  St.  534;  75  Am.  Dec.  482;  Bascom  t.  Bas- 
com,  7  Ohio  (part  2),  126. 

*  Parish  v.  Parish,  9  Ohio  St,  534;  75  Am.  Dec.  482;  Greene  v.  Greene, 
2  Gray,  361 ;  61  Am.  Dec.  454. 

^  Laughery  v.  Laughery,  15  Ohio,  404 ;  Tappan  v.  Tappan,  6  Ohio  St.  64. 

®  Kinnier  v.  Kinnier,  45  N.  Y.  535 ;  6  Am.  Rep.  132  ;  Waldo  r.  Waldo, 
52  Mich.  94;  17  N.  W.  Rep.  710;  Thomson  t'.  Thomson,  91  Ala.  591 ; 
8  Sou.  Rep.  419. 

'  Sewell  V.  Sewell,  122  Mass.  156;  23  Am.  Rep.  299  ;  Hunt  v.  Hunt,  72 
N.  Y.  217;  28  Am.  Rep.  129;  Reed  v.  Reed,  52  Mich.  117  ;  17  N.  W.  Rep. 
720. 


51 G     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

holding  to  the  contrary  are  cases  in  which  the  adverse 
party  was  before  the  court  by  personal  service  or  an  appear- 
ance. If,  however,  the  defendant  was  a  non-resident,  was 
constructively  notified,  and  had  no  knowledge  of  the  ac- 
tion, and  the  fraud  consisted  in  deceiving  the  court  as  to 
the  jurisdictional  fact  of  residence  of  the  plaintifi',  the 
judgment  may  be  attacked  on  that  ground.^ 

In  some  of  the  states,  the  residence  of  the  plaintifi"  is 
not  the  only  test  of  jurisdiction.  The  place  of  the  com- 
mission of  the  ofifense  constituting  the  cause  for  divorce  is 
also  material.  Thus  it  is  held  that  the  action  can  not  be 
maintained  where  the  ofiense  was  committed  out  of  the 
state  at  a  time  when  the  parties  were  non-residents.^  But 
this  doctrine  is  controlled  by  statutes  to  the  contrary  in 
most  of  the  states,  and  has  been  expressly  repudiated  in 
some  of  the  decided  cases.* 

In  some  of  the  states,  in  order  to  authorize  the  granting 
of  a  divorce,  the  parties  must  have  lived  together  as  hus- 
band and  wife  within  the  state.^ 

The  federal  courts  have  no  jurisdiction  upon  the  subject 
of  divorce  or  the  allowance  of  alimony,  within  the  states, 
either  as  an  original  proceeding  in  chancery  or  as  incident 
to  a  suit  for  divorce.^  But  they  have  jurisdiction  to  en- 
force a  decree  for  alimony  rendered  by  a  state  court.^ 

Orders  or  decrees  for  alimony,  or  for  the  custody  or 
maintenance  of  the  children  of  the  parties,  are  usually 
subject  to  modification  and  the  control  of  the  court,  even 
after  final  decree  and  after  the  term.^  And  it  is  usually 
held  that  where  alimony  is  asked  for  in  an  action  for  di- 

'  Sewell  V.  Sewell,  122  Mass.  156 ;  23  Am.  Rep.  299 ;  Reed  v.  Reed,  52 
Mich.  117 ;  17  N.  W.  Rep.  720. 

2  Norris  v.  Norris,  64  N.  H.  523;  15  Atl.  Rep.  19;  Foss  v.  Foss,  58  N.  H. 
283  ;  Heath  v.  Heath,  42  La.  Ann.  437 ;  7  Sou.  Rep.  540.  See,  also,  Per- 
zel  V.  Perzel,  15  S.  W.  Rep.  658. 

2  Jones  V.  Jones,  67  Miss.  195;  6  Sou.  Rep.  712. 

*  Weston  V.  Weston,  143  Mass.  274 ;  9  N.  E.  Rep.  557 

6  Barber  v.  Barber,  21  How.  582. 

8  Bacon  v.  Bacon,  43  Wis.  197  ;  Ewing  v.  Ewing,  24  Ind.  468;  Ex  parte 
Cottrell,  59  Cal.  417. 


DIVORCE.  517 

vorce,  and  during  the  pendency  of  such  action,  no  notice 
to  the  defendant  of  such  application  is  necessary.^ 

The  power  to  grant  such  alimony  or  modify  an  order 
made  therefor  is  not  suspended  by  an  appeal.^  Orders  al- 
lowing alimony,  money  for  carrying  on  the  action,  or  af- 
fecting the  custody  of  children  pendente  lite,  can  only  be 
made  by  the  court  before  whom  the  divorce  proceeding  is^ 
pending,  and  must  be  made  within  the  territorial  jurisdic- 
tion of  the  court,  or  at  chambers,  within  the  jurisdiction, 
if  allowed  to  be  made  by  the  judge,  unless  otherwise  pro- 
vided by  law.^ 

The  question  whether  the  court  has  obtained  jurisdic- 
tion or  not  turns,  frequently,  upon  the  sutficiency  of  the 
affidavit  and  other  steps  necessary  to  authorize  publication 
of  notice  in  lieu  of  personal  service.  This  question  of 
constructive  service,  or  notice,  so  far  as  it  relates  to  the 
general  question  of  obtaining  jurisdiction  in  all  cases,  has 
been  considered  in  other  sections  of  this  work.*  And  the 
general  principles  laid  down  in  the  sections  referred  to,  re- 
specting constructive  notice,  are  applicable  to  a  proceeding 
for  divorce.  In  this  connection,  cases  bearing  upon  the 
sufficiency  of  such  affidavits  in  divorce  cases  are  cited  in 
the  foot-note.^  In  case  of  a  collateral  attack,  it  will  be 
presumed,  in  the  absence  of  a  showing  to  the  contrary, 
that  a  proper  affidavit  was  made.^  And  recitals  in  the 
record  of  such  service  will,  in  the  absence  of  a  showing  to 
the  contrary,  be  presumed  to  be  correct.'' 

Where  the  issuance  of  summons,  and  an  effiDrt  of  the 
sheriff  to  serve  the  same,  is  required,  before  publication 
can  be  had,  such  publication  can  not  be  made  until  after 

'  Mudd  V.  Mudd,  98  Cal.  320. 

^  Bohnert  v.  Bohnert,  91  Cal.  428;  27  Pac.  Rep.  732. 

»  Bennett  v.  Southard,  35  Cal.  688. 

*  Ante,  sees.  11,  13,  22,  23,  32,  33,  38. 

^  Bonsell  v.  Bonsell,  41  Ind.  476 ;  Morrison  r.  Morrison,  64  Mich.  53 ; 
30  N.  W.  Rep.  903;  Pettiford  v.  Zoellner,  45  Mich.  358;  8  N.  W.  Rep.  57. 

«  Ante,  sees.  23,  25 ;  Hardy  v.  Beaty,  84  Tex.  562 ;  19  S.  W.  Rep.  778 ; 
Thomson  v.  Thomson,  91  Ala.  591 ;  8  Sou.  Rep.  419 ;  In  re  Newman,  75 
Cal.  213 ;  16  Pac.  Rep.  887. 

'  Ante,  sees.  23,  25;  Israel  v.  Arthur,  7  Colo.  5;  1  Pac.  Rep.  438. 


518     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

the  return  day  of  the  summons,  although  the  same  may 
have  been  returned  not  found.* 

A  defective  service  may  be  waived  by  an  appearance.^ 
In  some  of  the  states,  something  more  than  the  publi- 
cation of  notice  is  required ;  for  example,  that  the  notice 
published  shall  be  mailed  to  the  defendant.  Such  require- 
ment must  be  complied  with  in  good  faith,  or  a  showing 
made  that  such  provision  could  not  be  complied  with,  for 
good  reason,  or  the  judgment  will  be  held  void.^  i| 

Usually,  personal  service  of  summons  or  appearance  is 
made  necessary,  by  statute,  to  give  jurisdiction  as  against 
a  resident  defendant  in  divorce  cases  as  well  as  in  other 
cases.* 

74.  Attachment. — Attachment  is  defined  to  be  "  a  pro- 
visional remedy  whereby  a  debtor's  property,  real  or  per- 
sonal, or  any  interest  therein  capable  of  being  taken  un-  | 
der  a  levy  and  execution,  is  placed  in  the  custody  of  the 
law  to  secure  the  interests  of  the  creditor,  pending  the 
determination  of  the  cause."  ^  It  is  not  a  common-law 
remedy,''  although  it  is  said  to  have  had  its  origin,  in  this 
countr}',  in  the  custom  of  foreign  attachment  in  London.'^ 
And  the  origin  of  the  remedy  is  of  but  little  if  any  prac- 
tical importance  at  the  present  day  in  this  country,  be- 
cause, whatever  may  have  given  rise  to  it,  the  remedy  may 
be  said  to  be  wholly  and  entirely  statutory.^ 

The  proceeding  is  in  the  nature  of,  but  not  strictly,  a 
proceeding  in  rem,  because  the  mere  seizure  of  the  prop- 
erty does  not  give  the  court  power  to  proceed  to  a  final 
disposition  of  it  without  notice  in  some  form  to  the  de- 

»  Cheely  v.  Clayton,  110  U.  S.  701 ;  4  Sup.  Ct.  Rep.  328;  Israel  v.  Ar- 
thur, 7  Colo.  5;  1  Pac.  Rep.  438;  Palmer  v.  Cowdrey,  2  Colo.  1. 
»  Jones  V.  Jones,  108  N.  Y.  415 ;  15  N.  E.  Rep.  707.  S 

"  Brittoh  V.  Britton,  45  N.  J.  Eq.  88 ;  15  Atl.  Rep.  266.  ^ 

*  Willman  v.  Willman,  57  Ind.  500.  .1 

^  1  Am.  &  Eng.  Enc.  of  Law,  894. 

^  Drake  Attach.,  sec.  4  ;  Wade  Attach.,  sec.  2  ;  Haywood  v.  Collins,  60 
111.  328. 
'  Drake  Attach.,  sec.  1 ;  Wade  Attach.,  sec.  1.  Z 

8  Wade  Attach.,  sec.  2;  Haywood  v.  Collins,  60  111.  328.  ^ 

I 
I 


ATTACHMENT.  519 

fendant.^  And  in  this  consists  the  main  difference  between 
the  statutory  remedy  of  attachment  in  this  country  and 
that  of  the  custom  of  London. ^ 

Courts  of  equity  have  no  jurisdiction  to  administer  the 
remedy  as  a  part  of  their  general  equity  powers.^  But  the 
jurisdiction  is  in  some  of  the  states  conferred  upon  courts 
of  equity,  and  its  exercise  authorized  in  equitable  suits. 
and  proceedings,  and  even  in  actions  for  damages  for  torts.* 
It  is  a  remedy  that  is  incidental  to  and  which  depends 
upon  the  right  of  the  plaintiff  to  recover  a  judgment 
against  the  defendant,  and  can  only  be  obtained  in  con- 
nection with,  and  during  the  pendency  of,  an  action  for 
the  recovery  of  such  judgment,  or  to  establish  a  right 
thereto  and  have  the  property  attached  applied  to  the 
satisfaction  of  the  amount  claimed  to  be  due  or  owinff  to 
the  plaintiff",  and  is  denominated  a  provisional  remedy.^ 
Therefore,  if  the  main  action  fails,  the  attachment  pro- 
ceeding must  fall  with  it.^  And  where  the  defendant  is  a 
non-resident  and  is  not  personally  served,  if  the  attach- 
ment proceeding  fails,  the  main  action  is  at  an  end.  In 
such  case,  there  is  no  jurisdiction,  except  by  virtue  of  the 
attachment.^  And  where  there  is  no  personal  service  and 
the  defendant  is  a  non-resident,  the  proceeding  is  essen- 
tially one  in  rem.^  Therefore,  if  the  attachment  is  main- 
tained, the  property  attached  alone  is  subject  to  the 
judgment.^  But  the  attachment  may  be  maintained  where 
the  right  to  such  judgment  is  established,  although  a  per- 

^  Drake  Attach.,  sees.  5,  436,  437;  Wade  Attach.,  sec.  7;  Jarvis  v.  Bar- 
rett, 14  Wis.  591. 
^  Drake  Attach.,  sec.  5.  ^  Drake  Attach.,  sec.  4a. 

*  McKinsey  v.  Squires,  32  W.  Va.  41  ;  9  S.  E.  Rep.  55 ;  Ware  v.  Sea- 
songood,  9  Sou.  Rep.  138;  Taylor  v.  Badoux,  21  S.  W.  Rep.  522;  Alt- 
meyer  v.  Caulfield,  37  W.  Va.  847 ;  17  S.  E.  Rep.  -^09. 

^  Wade  Attach.,  sec.  7 ;  Jarvis  v.  Barrett,  14  Wis.  591 ;  Lackett  v.  Rueq- 
baugh,  45  Fed.  Rep.  23. 

«  Lackett  v.  Rumbaugh,  45  Fed.  Rep.  23 ;  Reed  r.  Maben,  21  Neb.  696  ; 
33  N.  W.  Rep.  252. 

^  Randle  v.  Mellen,  67  Md.  181 ;  8  Atl.  Rep.  573;  Kenney  v.  Goergen, 
36  Minn.  190;  31  N.  W.  Rep.  210. 

*  Ante,  sec.  14. 

»  Stanley  v.  Stanley,  35  S.  Car.  94,  584;  14  S.  E.  Rep.  675. 


« 


520      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

Bonal  judgment  can  not  be  recovered,  because  of  the  fact 
that  personal  service  has  not  been  obtained.  In  such  a 
case  the  attachment  proceeding  may  be  said  to  uphold  the 
main  action.  And  while  the  attachment  proceeding  is  an- 
cillary and  dependent  upon  the  main  action  for  its  support, 
it  is  so  far  independent  that  it  rests  upon  its  own  facts, 
and  not  upon  the  facts  of  the  action.^ 

The  right  to  an  attachment  is  not  confined  to  residents^ 
but  may  be  resorted  to  by  a  non-resident  creditor  in  aid  of  a 
cause  of  action  arising  out  of  the  state.^  But  the  right  is 
sometimes  limited  by  statute.^  The  proceeding  is  extraor- 
dinary, and  is  only  allowed  under  special  circumstances 
invariably  imposed  by  statute.  And  as  it  is  a  right  greatly 
subject  to  abuse,  it  is  carefully  guarded  by  the  courts  and 
confined  strictly  within  the  limits  prescribed  by  the  stat- 
ute.^ It  is  sometimes  said  that  such  statutory  conditions 
must  be  strictly  complied  with.*  And  especially  where 
the  judgment  is  by  default.^  But  this  does  not  mean  a 
literal  compliance  with  the  statute.'^  The  better  rule  is 
that  there  must  be  a  substantial  compliance  with  all  of 
the  material  requirements  of  the  statute.  And  notwith- 
standing the  strong  language  used  in  the  decided  cases,  it 
will  be  found,  upon  an  examination  of  them,  that  in  much 
the  greater  number,  where  the  question  has  been  pre- 
sented, proceedings  complying  substantially  with  the  statu- 
tory requirements  have  been  upheld.  It  is  simply  a  dif- 
ference between  theory  and  practice  that  is  not  at  all  un- 
common. 

These  requirements  difier  in  the  different  states.  But 
generally  they  are  that  an  action  in  which  an  attachment 

1  Reed  v.  Maben,  21  Neb.  696 ;  33  N.  W.  Rep.  252. 

2  Sheldon  v.  Blanvelt,  29  S.  Car.  453 ;  7  S.E.  Rep.  593. 

^Oliver  v.  Walter  Haywood,  etc.,  Co.,  10  N.  Y.  Supl.  771;  Taylor  v. 
Badoux,  21  S.  W.  Rep.  522. 

*  Delaplain  v.  Armstrong,  21  W.  Va.  211 ;  Wando  Phosphate  Co.  v. 
Rosenberg,  31  S.  Car.  301 ;  9  S.  E.  Rep.  969. 

^Foylesv.  Kelso,  1  Blkf.  (Ind.)  215;  Lackett  v.  Rumbaugh,  45  Fed. 
Rep.  23 ;  Lehman  v.  Broussard,  12  Sou.  Rep.  504. 

6  Woolkins  v.  Haid,  49  Mich.  299 ;  13  N.  W.  Rep.  598. 

'  Altmeyer  v.  Caulfield,  37  W.  Va.  847 ;  17  S.  E.  Rep.  409. 


attac:i-Mi:nt.  521 

is  allowed  to  be  brought;  that  an  affidavit,  showing 
the  facts  necessary  to  entitle  the  plaintifi'  to  such  relief, 
be  made  by  the  plaintiff  or  by  some  one  authorized  by 
the  statute  to  make  it  in  his  behalf;  that  a  bond  or  un- 
dertaking, such  as  the  statute  requires,  be  given ;  and  that 
a  writ  conforming  to  the  statutory  requirements  be  issued. 
And  in  order  to  acquire  a  lien  upon  specific  property,  the 
writ  must  be  levied  by  the  proper  officer,  as  required  by 
law;  and  in  order  to  make  the  jurisdiction  of  the  court 
effective  and  enforce  the  lien,  notice  must  be  served  upon 
the  defendant  in  the  mode  provided  by  law. 

In  some  of  the  states,  the  attachment  may  issue  before 
the  action  is  actually  pending.  It  is  allowed  in  some 
cases  to  issue  when  the  complaint  is  filed,  where  the  action 
is  not  commenced  until  the  summons  is  issued  or  served.^ 
Statutes  differ  as  to  what  shall  constitute  the  commence- 
ment of  the  action.  But  for  the  purposes  of  attachment, 
the  action  is  usually  regarded  as  commenced  when  the 
complaint  is  filed  and  the  summons  issued,  or  the  first  pub- 
lication made.^  This  depends,  however,  upon  the  language 
of  each  statute.'  Sometimes  the  complaint  or  declaration 
is  authorized  to  be  filed  within  a  specified  time  after  the 
issuance  of  the  writ.  Under  such  a  statute,  the  failure  to 
file  the  complaint  within  the  time  limited  defeats  the  at- 
tachment.* But  it  is  held  that  the  failure  to  file  the 
declaration  in  time  is  an  irregularity  only  that  can  not  be 
taken  advantage  of  collaterally.^ 

It  is  not  within  the  scope  of  this  work  to  discuss  these 
different  steps  in  an  attachment  proceeding,  except  so  far 
as  they  affect  the  question  of  jurisdiction.  But  it  is  one 
of  the  peculiarities  of  the  proceeding  that  all  of  the  steps 
mentioned   are  necessary  to  vest  the  court  with  jurisdic- 

>  Schuster  v.  Rader,  13  Colo.  329 ;  22  Pac.  Rep.  505. 

■'  Coffman  v.  Brandhoeffer,  33  Neb.  279 ;  50  N.  W.  Rep.  li ;  Schulen- 
berg  V.  Farwell,  84  111.  400. 

'  McLaughlin  v.  Wheeler,  50  N.  W.  Rep.  834;  Jones  r.  Waruick,  49 
Kan.  63  ;  30  Pac.  Rep.  115. 

*  Russell  V.  Faulkner,  89  Ga.  818 ;  15  S.  E.  Rep.  756. 

*  Smith  V.  Runnels,  94  Mich.  617  ;  54  N.  W.  Rep.  375 


522       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

tion  in  the  first  instance ;  or  a  failure  to  comply  with  them 
or  either  of  them  will,  or  may,  wholly  deprive  the' court 
of  the  power  to  proceed  further,  or  render  its  jurisdiction 
ineffectual.  Therefore,  these  different  requirements  of 
the  law,  and  the  steps  necessary  to  be  taken,  affect  the 
question  of  jurisdiction,  directly  or  indirectly,  and  must 
receive  attention.  They  will  be  considered  separately, 
and : 

1.  An  action  in  ivhich  an  attachment  is  allowed  must  be  com- 
menced and  pending. — Statutes  differ  in  the  different  states 
as  to  the  kinds  of  actions  or  the  remedy  sought  to  be  en- 
forced that  may  be  aided  by  an  attachment.  But  the 
pendency  of  an  action  in  which  an  attachment  is  allowed 
is  necessary  to  uphold  the  attachment  proceeding.^  Gen- 
erally the  remedy  is  confined  to  actions  upon  contracts, 
express  or  implied,  for  the  recovery  of  money .^  And  this 
includes  actions  for  unliquidated  damages  for  a  breach  of 
contract,^  although  it  is  otherwise  in  some  of  the  states.* 
But  not  an  action  for  damages  for  a  tort.^ 

In  some  of  the  states  a  special  affidavit  is  necessary,  in 
case  the  damages  claimed  are  unliquidated,  that  the  court 
may  determine  the  amount  for  which  a  levy  should  be 
made.^ 

This,  however,  is  a  matter  of  statutory  regulation,  and 
the  right  may  be  given  in  actions  for  torts.  And  in  some 
of  the  states  the  right  to  an  attachment  is  given  where  the 
debt  was  fraudulently  contracted,  as,  for  example,  where 
the  money  sued  for  was  obtained  by  false  pretenses  or  other 
fraud.^     In  such  cases  the  cause  of  action  is  upon  a  eon- 

^  Lackett  v.  Rumbaugh,  45  Fed.  Rep.  23. 

2  1  Am.  &  Eng.  Enc.  of  Law,  895  ;  Wade  Attach.,  sees.  II,  12, 13 ;  Farm- 
ers Nat'l  Bank  v.  Fonda,  65  Mich.  533 ;  32  N.  W.  Rep.  664 ;  Suksdorff  v. 
Bigham,  12  Pac.  Rep.  818. 

^  Guy  V.  Lee,  81  Ala.  163 ;  2  Sou.  Rep.  273 ;  Dunn  v.  Mackey,  80  Cal. 
104;  22  Pac.  Rep.  64;  Baumgardner  v.  Dowagiac  Manfg.  Co.,  52  N.  W. 
Rep.  964 ;  Withers  v.  Brittain,  35  Neb.  436 ;  53  N.  W.  Rep.  375. 

*  Wade  Attach.,  sec.  13. 

^  1  Am.  &  Eng.  Enc.  of  Law,  895 ;  Suksdorff  i-.  Bigham,  12  Pac.  Rep. 
818. 

«  Guy  V.  Lee,  81  Ala.  163  ;  2  Sou.  Rep.  273. 

'  Wade  Attac*h.,  sec.  98. 


I 


ATTACHMENT.  623 

tract,  it  is  true,  but  it  is  the  wrongful  and  tortious  act  of 
the  defendant  that  supports  the  jurisdiction  of  the  court  in 
the  attachment  proceedings.  In  other  states  the  right 
to  an  attachment  is  given  in  actions  for  damages  for  a 
tort.' 

As  to  what  will  constitute  an  action  upon  contract 
within  the  meaning  of  the  statutes  on  the  subject,  some 
authorities  have  been  gathered  in  the  foot  note.^ 

If  the  proceeding  is  commenced  in  an  action  for  a  tort 
an  amendment  of  the  complaint  so  as  to  make  it  one  upon 
contract  will  not  validate  the  attachment.^ 

The  commencement  of  the  attachment  proceeding  be- 
fore the  time  fixed  by  the  statute,  as,  for  example,  before 
the  summons  is  issued,  renders  the  whole  proceeding  void.* 
But  the  writ  may  issue,  under  some  of  the  statutes,  at  any 
time  before  the  entry  of  final  judgment.^ 

Where  the  afiidavit  for  the  attachment  contains  all  of 
the  allegations  necessary  to  constitute  it  a  complaint  in 
the  main  action,  the  failure  to  file  a  separate  complaint 
has  been  held  to  be  a  mere  irregularity  not  affecting  the 
jurisdiction  of  the  court,  and  which  may  be  obviated  by 
an  amendment.^ 

2.  Gj'ounds  upon  which  attachment  may  issue  and  the 
affidavit  necessary  to  sustain  them. — In  general  the  grounds 

'  Creasser  v.  Young,  31  Ohio  St.  57 ;  Sturdevant  v.  Tuttle,  22  Ohio  St. 
HI;  Wade  Attach.,  sec.  99. 

2  Farmers  Nat'l  Bank  v.  Fonda,  65  Mich.  533;  32  N.  W.  Rep.  664 ; 
Ordenstein  v.  Bones,  12  Pac.  Rep.  614 ;  Hart  v.  Barnes,  24  Neb.  782 ;  40 
N.  W.  Rep.  322;  Gutta  Percha,  etc.,  Co.  v.  City  of  Houston,  108  N.  Y.  276 ; 
15  N.  E.  Rep.  402;  Seeley  v.  Missouri,  K.  &  T.  Ry.  Co.,  .39  Fed.  Rep.  252; 
Tennessee  Ru.  Transp.  Co.  v.  Cavanaugh,  93  Ala.  324;  9  Sou.  Rep.  395; 
First  National  Bank  r.  Moss,  41  La.  Ann.  227;  6  Sou.  Rep.  25;  Stiff  r. 
Fisher,  21  S.  W.  Rep.  291 ;  Withers  v.  Brittain,  35  Neb.  436 ;  53  N.  W. 
Rep.  375;  Kennedy  i'.  California  Sav.  Bank,  97  Cal.  429;  31  Pac.  Rep. 
846 ;  S.  C.  V.  Peat  Fuel  Co.  v.  Tuck,  53  Cal.  .304. 

'  Suksdorff  v.  Bigham,  12  Pac.  Rep.  818;  Cole  r.  Aune,  40  Minn.  80; 
41  N.  W.  Rep.  934. 

*  Kellar  v.  Stanley,  86  Ky.  240 ;  5  S.  W.  Rep.  477. 

^  Davis  V.  Jenkins,  26  Pac.  Rep.  459. 

®  Sannoner  v.  Jacobson,  47  Ark.  31 ;  Lehman  r.  Lowman,  50  Ark.  444 ; 
8  S.  W.  Rep.  187. 


I 


524     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

of  an  attachment  are  the  absence,  concealment,  or  non- 
residence  of  the  defendant,  fraudulent  disposition,  in- 
cumbrance, removal  or  concealment  of  property  subject 
to  execution,  and  the  presence  of  property  within  the 
jurisdiction  of  the  court  subject  to  execution. 

The  affidavit  for  the  attachment  must  show  the  ex- 
istence of  one  or  more  of  the  causes  enumerated  in  the 
statute,  at  the  time  the  writ  is  asked  for.^  It  must 
also  show  the  indebtedness  of  the  defendant  to  the  plaint- 
iff' upon  such  a  contract  or  liability  as  will  authorize  an 
attachment,  the  amount  of  the  indebtedness,  whether  the 
demand  is  due  or  to  become  due,  that  the  contract  was 
made  or  is  payable  in  the  state  (where  this  is  a  con- 
dition upon  which  an  attachment  is  allowed),  and,  in 
some  of  the  states,  that  the  indebtedness  is  not  secured 
by  any  mortgage  or  other  lien,  in  some  that  the  demand 
is  just,  and  that  the  action  is  not  prosecuted  to  harass 
the  defendant  or  to  hinder  or  to  delay  or  defraud  any  of 
his  creditors,  and  that  there  is  property  of  the  defendant 
within  the  jurisdiction  subject  to  execution.^ 

The  affidavit  must  correspond  with  the  complaint  or 
petition  respecting  matters  necessary  to  be  stated  in  both, 
and  a  material  variance  between  them  is  fatal.^    The  ulti- 

'  Wade  Attach.,  sec.  7. 

'  Wade  Attach.,  sees.  65,  66,  67,  68,  69,  70,  71 ;  Blackwood  v.  Jones,  27 
Wis.  498 ;  Frantz  v.  Wendel,  28  Ind.  391 ;  First  Nat'l  Bank  v.  Moss,  41 
La.  Ann.  227;  6  Sou.  Rep.  25;  Gessner  v.  Palmateer,  89  Cal.  89;  26  Pac. 
Rep.  789;  Heudkins  v.  Haskins,  22  W.  Va.  645. 

"The  essential  facts  differ  in  different  states,  but  in  nearly  all  the  aflB- 
davit  must  show  the  nature  of  the  demand,  i.  e.,  the  facts  from  which 
the  indebtedness  arose,  the  amount  of  the  claim,  whether  the  demand 
is  actually  due  or  about  to  become  due ;  and,  in  many,  averment  must 
be  made  that  the  demand  is  just,  and  that  the  action  is  not  brought  to 
vex  or  harass  the  debtor,  nor  to  hinder,  delay  or  defraud  his  creditors. 
In  addition  to  these  essential  facts  the  statutory  '  grounds  of  the  attach- 
ment' must  also  be  alleged  to  entitle  the  plaintiflF  to  the  writ."  1  Am. 
&  Eng.  Enc.  of  Law,  902. 

''  Focke  V.  Hardeman,  67  Tex.  173;  2  S.  W.  Rep.  363;  Horton  v.  Miller, 
84  Ala.  537;  4  Sou.  Rep.  370;  Moore  v.  Corley,  16  S.  W.  Rep.  787;  Ken- 
nedyr.  California  Sav.  Bank,  97  Cal.  429;  31  Pac.  Rep.  846;  Bowers  v. 
London  Bank,  3  Utah,  417;  4  Pac.  Rep.  225. 


ATTACHMENT.  525 

mate  facts  necessary  to  authorize  the  issuance  of  the  writ 
must  be  stated  positively  and  with  certainty,^  But  some- 
times, as  to  some  of  the  causes,  an  allegation  that  the 
plaintiff  believes,  and  has  good  reason  to  believe,  that  a 
cause  averred  exists,  or  language  of  similar  import,  is 
allowed.^ 

It  is  not  necessary  to  state  the  probative  facts,^  but  ulti- . 
mate  facts  must  be  stated  and  not  mere  conclusions.*  If 
several  grounds  for  the  attachment  are  stated,  they  must 
not  be  stated  in  the  alternative  or  disjunctively.^  And 
an  affidavit  stating  two  grounds  for  an  attachment  which 
are  hiconsistent  with  each  other,  and  one  of  which  must 
be  untrue,  if  the  other  is  true,  is  fatally  defective.^ 

Generally  it  is  sufficient  to  state  the  grounds  in  the  lan- 
guage of  the  statute.^  But  the  use  of  the  language  of  the 
statute  is  not  indispensable.  Other  language,  showing  the 
existence  of  the  grounds,  or  any  of  them,  is  sufficient,* 
And  in  some  of  the  states  it  is  not  sufficient  to  state  cer- 
tain of  the  grounds  in  the  language  of  the  statute.  The 
facts  showing  the  existence  of  the  grounds  must  be 
averred.^  If  more  than  one  ground  is  alleged,  it  is  suffi- 
cient if  one  only  of  the  number  is  sustained  by  proof  at 
the  hearing.^** 

1  1  Am.  &  Eng.  Enc.  of  Law,  904 ;  Enneking  v.  Clay,  79  Ga.  598 ;  7  S. 
E.  Rep.  257;  Meinhard  v.  Neill,  11  S.  E.  Rep.  613;  Nelson  v.  Fuld,  89 
Tenn.  466;  14  S.  AV.  Rep.  1079;  Hinter  v.  Boutilier,  22  N.  Y.  Supl.  64. 

2  Byles  V.  Rowe,  64  Mich.  522 ;  31  N.W.  Rep.  463  ;  Solinsky  v.  Lincoln 
Savings  Bank,  85  Tenn.  368;  4  S.  W.  Rep.  836. 

3  1  Am.  &  Eng.  Enc.  of  Law,  904. 

*  Howell  r.  Muskegon  Circuit  Judge,  88  Mich.  361 ;  50  N.  W.  Rep.  306; 
National  Broadway  Bank  v.  Barker,  16  N.  Y.  Supl.  75. 

'=  Wilke  V.  Cohn,  54  Cal.  212;  Winters  v.  Pearson,  72  Cal.  553;  14  Pac. 
Rep.  304;  Drake  Attach.,  sec.  102;  Dintruff  v.  Tutbill,  17  X.  Y.  Supl. 
556. 

*  Dunnenbaum  r.  Scram,  59  Tex.  281. 

'  Loeb  V.  Smith,  78  Ga.  504 ;  3  S.  E.  Rep.  458 ;  Ruppert  v.  Hang,  87  N. 
Y.  141. 

*  Creasser  v.  Young,  31  Ohio  St.  57;  Ruppert  r.  Hang,  87  N.  Y.  141. 

^  Delaplain  v.  Armstrong,  21  W.  Va.  211  ;  Kibbe  r.  Herman,  3  N.  Y. 
Supl.  852;  Wando  Phosphate  Co.  r.  Rosenberg,  31  S.  Car.  301;  9  S.  E. 
Rep.  969 ;  Hudkins  v.  Haskins,  22  W.  Va.  645. 

'"Strauss  v.  Abrahams,  32  Fed.  Rep.  310. 


5'26      COMMON  LAAV,  EQUITY,  AND  STATUTOKY  JURISDICTION. 

Under  a  statute  which  denies  the  right  to  an  attachnient 
where  the  plaintiff  has  a  lien  upon  property,  a  vendor's 
lien  for  purchase-money  of  real  estate,  where  the  notes 
for  such  purchase-money  have  been  assigned  to  the  plaint- 
iff, is  within  the  statute.^ 

The  affidavit  is  the  foundation  and  support  of  the  ju- 
risdiction of  the  court,  and  the  general  rule  is  that  the 
omission  to  make  it,  or  the  failure  to  state  in  it  any  of 
the  essential  facts,  will  render  the  whole  proceeding  void.^ 
This  general  statement  of  the  rule  is  subject  to  some 
modification,  however.  In  many  of  the  states,  the  affi- 
davit may  be  amended.  And  where  such  amendments  are 
allowed,  it  is  generally  held  that  any  defect  in  the  affidavit 
that  may  be  amended  will  render  a  judgment  rendered 
thereon  voidable  only  and  not  void.^  And,  irrespective 
of  any  right  given  to  amend,  a  mere  defect  in  the  affi- 
davit must  be  distinguished  from  an  entire  failure  to  make 
any  affidavit  at  all.  But  to  what  extent  or  in  what  re- 
spects an  affidavit  may  fall  short  of  the  statutory  require- 
ments and  yet  be  sufficient  to  uphold  the  jurisdiction  of 
the  court,  in  case  of  a  collateral  attack,  is  not  easily  an- 
swered either  on  principle  or  from  the  authorities.* 

A  complaint  and  affidavit  for  attachment  may,  under 
the  practice  in  some  of  the  states,  be  combined.^  And  the 
affidavit  may  be  aided  by  allegations  in  the  complaint,  or 
by  the  instrument  creating  the  indebtedness  made  the 
foundation  of  the  action   and   attachment.^     As  to  what 

'  Gessner  v.  Palmateer,  89  Cal.  89 ;  26  Pac.  Rep.  789. 

*  1  Am.  &  Eng.  Enc.  of  Law,  901 ;  Wade  Attach.,  sees.  6,  55  et  seq.; 
Kruse  v.  Wilson,  79  111.  233;  Burnett  v.  McCluey,  92  Mo.  230;  4  S.  W. 
Rep.  694;  Bray  v.  McClury,  55  Mo.  128;  Wando  Phosphate  Co.  v.  Rosen- 
berg, 31  S.  Car.  301 ;  9  S.  E.  Rep.  969. 

=*  Burnett  v.  McCluey,  92  Mo.  230 ;  4  S.  W.  Rep.  694 ;  Booth  v.  Rees, 
26  111.  45;  Moore  v.  Mauck,  79  111.  391. 

*  See,  on  this  subject,  Booth  v.  Rees,  26  111.  45 ;  Landfair  v.  Lowman, 
50  Ark.  446 ;  8  S.  W\  Rep.  188. 

^  Sannover  v.  Jacobson,  47   Ark.  31;    14  S.  W.  Rep.  458;    Dunn   v. 
Crocker,  22  Ind.  324. 
«  Panhandle  Nat.  Bank  v.  Still,  84  Tex.  339 ;  19  S.  W.  Rep.  479. 


.ATTACHMENT.  527 

will  constitute  a  sufficient  affidavit,  generally,  see  the  au- 
thorities below.^  The  same  affidavit  may  serve  as  one  for 
publication  and  for  an  attachment,  if  it  contains  the  nec- 
essary allegations  required  for  both.^ 

In  some  of  the  cases,  the  proceeding,  with  respect  to 
the  question  of  jurisdiction,  is  treated  as  strictly  one  in 
rem.,  and  it  is  held  that  it  is  the  seizure  of  the  property, 
that  gives  the  court  jurisdiction,  and  that  in  case  of  a  col- 
lateral attack  it  can  not  be  held  that  the  court  was  without 
jurisdiction  because  of  defects  in  the  affidavit  or  a  failure 
to  give  notice  to  the  defendant.^ 

'  Booth  V.  Rees,  26  111.  45;  Burnett  v.  McCluey,  92  Mo.  230;  4  S.  AV. 
Rep.  694;  Kruse  v.  Wilson,  79  111.  233;  Moore  r.  Mauck,  79  111.  391 ;  Bray 
V.  McClury,  55  Mo.  128;  Robinson  v.  Hesser,  4  N.  Mex.  144;  13  Pac. 
Rep.  204;  Hart  v.  Barnes,  24  Neb.  782;  40  N.  W.  Rep.  322;  Labalt  v. 
Schulhof,  4  X.  Y.  Supl.  819;  Perrill  v.  Kauffman,  72  Tex.  214;  12  S.  W. 
Rep.  125;  Buehler  v.  De  Lemos,  48  N.  W.  Rep.  42;  Munzenheimer  r. 
Manhattan,  etc.,  Co.,  82  Tex.  351 ;  15  S.  W.  Rep.  389;  Hudkins  v.  Has- 
kins,  22  W.  Va.  645. 

=  Burnett  v.  McCluey,  92  Mo.  230;  4  S.  W.  Rep.  694;  Miller  v.  East- 
man, 27  Neb.  408;  43  N.  W.  Rep.  179;  Cosner's  Adm'r  v.  Smith,  36  W. 
Va.  788;  15  S.  E.  Rep.  977;  Avery  v.  Good,  21  S.  W.  Rep.  815. 

'  Cooper  V.  Reynolds,  10  Wall.  308. 

"  Now,  in  this  class  of  cases,  on  what  does  the  jurisdiction  of  the  court 
depend  ?  It  seems  to  us  that  the  seizure  of  the  property,  or  that  which, 
in  this  case,  is  the  same  in  effect,  the  levy  of  the  writ  of  attachment  on 
it,  is  the  one  essential  requisite  to  jurisdiction,  as  it,  unquestionably,  is 
in  proceedings  purely  in  rem.  Without  this  the  court  can  proceed  no 
further;  with  it  the  court  can  proceed  to  subject  that  property  to  the 
demand  of  plaintiff.  If  the  writ  of  attachment  is  the  lawful  writ  of  the 
court,  issued  in  proper  form  under  the  seal  of  the  court,  and  if  it  is  by 
the  proper  officer  levied  upon  property  liable  to  the  attachment,  when 
such  a  writ  is  returned  into  court,  the  power  of  the  court  over  the  res  is 
established.  The  affidavit  is  the  preliminary  to  issuing  the  writ.  It 
may  be  a  defective  affidavit,  or  possibly  the  officer  whose  duty  it  is  to 
issue  the  writ  may  have  failed  in  some  manner  to  observe  all  the  requi- 
site formalities ;  but  the  writ  being  issued  and  levied,  the  affidavit  has 
served  its  purpose  and,  though  a  revisory  court  might  see  in  some  such 
departure  from  the  strict  direction  of  the  statute  sufficient  error  to  re- 
verse the  judgment,  we  are  unable  to  see  how  that  can  deprive  the  court 
of  the  jurisdiction  acquired  by  the  writ  levied  upon  defendant's  prop- 
erty. 

"  So,  also,  of  the  publication  of  notice.  It  is  the  duty  of  the  court  to 
order  such  publication,  and  to  see  that  it  has  been  properly  made,  and. 


528       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

While,  in  other  cases,  it  is  held  that  it  is  the  presence 
of  property  within  the  jurisdiction  of  the  court  that  gives 
it  jurisdiction  of  the  case,  and  that  a  seizure  of  property 
is  only  necessary  to  protect  the  plaintifl'  from  a  removal  or 
sale  of  the  property.^  And  in  still  others  that  it  is  the 
affidavit  that  puts  the  jurisdiction  of  the  court  in  motion, 
and  that  subsequent  proceedings,  including  the  attach- 
ment of  the  property,  are  not  jurisdictional,  and  defects  in 
such  subsequent  proceedings  are  mere  irregularities  not 
affecting  the  jurisdiction  of  the  court.^  But,  whether  the 
proceeding  is  regarded  as  strictly  one  in  rem.  or  not,  the 
better  rule  is  that  where  there  is  no  personal  service,  it  is 
only  by  attaching  the  property  that  the  court  obtains  juris- 
diction, and  that  its  authority  does  not  extend  beyond  the 
property  attached.* 

It  does  not  follow,  however,  that  the  subsequent  pro- 
ceedings are  not  jurisdictional.  Other  steps  may,  and 
often  are,  required  to  be  taken  which,  if  omitted,  will  put 
an  end  to  the  jurisdiction  acquired  by  the  levy  of  the  writ. 

It  may  be  more  convenient  to  treat  of  the  different 
parts  and  elements  of  the  affidavit  separately,  and 

a.  By  whom  the  affidavit  may  be  made.  As  to  the  person 
by  whom  the  affidavit  shall  be  made,  statutes  differ. 
Some  require  the  affidavit  to  be  made  by  the  plaintiff. 
Others  permit  it  to  be  made  by  an  attorney  or  agent.* 
An  attorney  must  be  authorized  as  such  at  the  time 
the  affidavit  is  made,  or  it  will  not  sustain  the  writ. 
A  subsequent  ratification  will  not  constitute  a  compliance 

undoubtedly,  if  there  has  been  no  such  publication,  a  court  of  errors 
might  reverse  the  judgment. 

"  But  when  the  writ  has  been  issued,  the  property  seized,  and  that 
property  been  condemned  and  sold,  we  can  not  hold  that  the  court  had 
no  jurisdiction  for  want  of  a  sufficient  publication  of  notice."  Cooper 
V.  Reynolds,  10  Wall.  308,  321. 

1  Jarvis  v.  Barrett,  14  Wis.  591.  "  Kruse  v.  Wilson,  79  111.  233. 

3  Kenney  v.  Goergen,  36  Minn.  190 ;  31  N.  W.  Rep.  210. 

♦  Gazan  v.  Royce,  78  Ga.  512;  3  S.  E.  Rep.  753;  Hardie  v.  Colvin,  43 
La.  Ann.  851 ;  9  Sou.  Rep.  745. 


ATTACHMENT.  529 

with  the  statute.^     By  some  of  the  statutes,  it  is  authorized 
to  be  made  by  any  credible  person.^ 

b.  Averment  of  the  cause  of  action  and  the  amount  due. 
The  affidavit  must  show  that  there  is  a  cause  of  action,  and 
that  it  is  one  in  which  an  attachment  is  authorized.^  And 
in  order  to  show  that  it  is  an  action  in  which  an  attach- 
ment may  issue,  the  nature  of  the  plaintiff's  claim  must  be- 
stated.*  The  amount  due  must  be  alleged.^  This  is  some- 
times permitted  to  be  done  by  reference  to  a  verified  com- 
plaint showing  the  fact.  And  where  the  instrument  made 
the  foundation  of  the  action,  and  proceeding,  is  set  out 
and  shows  the  debt  to  be  due,  an  omission  to  state  it  in 
the  affidavit  is  not  fatal.® 

It  is  held  that  a  variance  between  the  affidavit  and  the 
complaint,  as  to  the  amount  due,  must  be  taken  advantage 
of  in  the  trial  court,  and  that  the  objection  can  not  be 
made  on  appeal.^  It  follows  from  this  rule  that  such  a 
variance  does  not  affect  the  jurisdiction  of  the  court. 

It  is  not  necessary  that  the  contract  sued  upon  shall 
show  on  its  face  the  amount  due  upon  it.  It  is  sufficient 
if  it  appears  from  the  affidavit.^  But  the  contract  must 
be  such  that  the  amount  due  can  be  ascertained  with  rea- 
sonable certainty,  or  the  attachment  can  not  be  main- 
tained.^ Where  parties  may  be  sued  jointly,  but  are  only 
liable  severally,  each  for  his  proportionate  part  of  the  debt, 

^  Johnson  v.  Johnson,  31  Fed.  Rep.  700. 

'  Ruhl  V.  Rogers,  29  W.  Va.  779 ;  2  S.  E.  Rep.  798. 

'  Blackwood  v.  Jones,  27  Wis.  498;  Ward  v.  Howard,  12  Ohio  St.  158; 
Hart  V.  Barnes,  24  Neb.  782;  40  N.  W.  Rep.  322;  Gunst  v.  Pelham,  12  S. 
W.  Rep.  233;  Dunn  v.  Mackey,  80  Cal.  104  ;  22  Pac.  Rep.  64  ;  Haebler  v. 
Bernharth,  4  N.  Y.  Supl.  873  ;  Wade  Attach.,  sec.  65. 

*  Hudkins  v.  Haskius,  22  W.  Va.  645. 

*  Burnett  v.  McCluey,  92  Mo.  230  ;  4  S.  W.  Rep.  694  ;  Booth  v.  Rees, 
26  111.  45;  Dunn  v.  Mackey,  80  Cal.  104;  22  Pac.  Rep.  64 ;  Haebler  ?■. 
Bernharth,  4  N.  Y.  Supl.  873 ;  Cosner's  Adm.  v.  Smith,  36  W.  Va.  788; 
15  S.  E.  Rep.  977. 

8  Panhandle  Nat.  Bank  v.  Still,  84  Tex.  339 ;  19  S.  W.  Rep.  479. 
'  Fears  v.  Thompson,  82  Ala.  294;  2  Sou.  Rep.  719. 

«  Dunn  r.  Mackey,  80  Cal.  104 ;  22  Pac.  Rep.  64. 

9  Hochstaddcr  v.  Sam,  73  Tex.  315  ;  11  S.  W.  Rep.  408. 

34 


530       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

as  in  case  of  the  statutory  liability  of  stockholders  of  a 
corporation  for  its  debts,  the  amount  due  from  each 
fixes  the  amount  for  which  the  attachment  may  issue 
against  him,  and  it  has  been  held  that  a  writ  issued 
against  all  of  the  stockholders,  jointly,  for  the  whole 
amount  due,  can  not  be  upheld.^  In  some  of  the  states, 
the  affidavit  must  show  that  "the  plaintiff  is  entitled  to 
recover  a  sum  stated  therein  over  and  above  all  counter- 
claims known  to  him."  Under  this  peculiar  language,  if 
the  affidavit  is  made  by  any  one  other  than  the  plaintiff, 
he  must  show  thereby  that  he  has  knowledge  of  such  in- 
debtedness and  the  sources  of  his  information.^  And 
whether  the  affidavit  is  made  by  the  plaintiff  or  some  one 
else,  a  mere  showing  that  the  defendant  is  indebted  to  the 
plaintiff'  in  the  amount  stated,  and  that  the  plaintiff  is 
justly  entitled  to  recover  said  sum,  is  insufficient  to  give 
the  court  jurisdiction  to  issue  the  writ.  The  language  of 
the  statute  as  to  the  counterclaim,  or  equivalent  words, 
must  be  used.^ 

c.  Presence  of  property  within  the  jurisdiction  of  the  court. 
In  some  of  the  states,  the  affidavit  is  required  to  show 
that  the  defendant  has  property  within  the  jurisdiction  of 
the  court.  And  it  has  been  held  that  it  is  not  the  making 
of  the  affidavit  to  that  effect  that  gives  jurisdiction,  but 
the  property  must  in  fact  be  within  the  jurisdiction  of  the 
court,  and  therefore  the  fact  alleged  maybe  controverted.^ 
But,  as  we  shall  see  directly,  it  is  usually  held  that  the 
actual  seizure  or  levy  upon  the  property  is  necessary  to 
confer  jurisdiction  over  it,  where  there  is  no  personal 
service. 

The  allegation  that  the  defendant  has  property  within 
the  state  is  not  always  required.^  But  whether  it  is  or 
not,  the  fact  must  exist,  where  the  defendant  is  a  non-resi- 

1  Kennedy  v.  California  Savings  Bank,  97  Cal.  93 ;  31  Pac.  Rep.  846. 

*  Lee  r.  Co-operative  L.  &  A.  Ass'n,  2  N.  Y.  Supl.  864. 

3  Ruppert  V.  Hang,  87  N.  Y.  141. 

*■  Ante,  sec.  14 ;  Fiske  v.  Anderson,  33  Barb.  (N.  Y.)  71. 

^  Kenney  v.  Goergen,  36  Minn.  190 ;  31  N.  W.  Rep.  210. 


ATTACHMENT.  531 

dent  and  not  personally  served,  in  order  to  give  the  court 
jurisdiction.^ 

d.  Non-residence  of  the  defendant.  In  most  of  the  states, 
the  non-residence  of  the  defendant  is  made  a  ground  of 
attachment.^  Where  the  action  is  against  joint  debtors, 
as  in  case  of  partners,  no  attachment  can  be  maintained 
against  one  of  such  debtors  on  the  ground  of  his  non-resi- 
dence, the  other  joint  debtor  being  a  resident.  Therefore 
the  affidavit  must  show  the  non-residence  of  both.'  The 
question  is  one  of  actual  residence,  and  not  one  of  domi- 
cile.* 

e.  Absconding  debtors. — The  concealment  of  a  debtor  or 
his  leaving  his  place  of  residence  to  avoid  liability,  is  usu- 
ally made  a  ground  for  attachment.^ 

/.  Fraudulent  disposition,  removal  of,  or  intent  to  remove, 
property  out  of  the  jurisdiction.^ — Allegations  of  fraud  or 
concealment  in  the  affidavit  are  usually  permitted  by  stat- 
ute to  be  made  on  information  and  belief.^  But  the  grounds 
of  such  belief  are  required,  in  some  of  the  states,  to  be  set 
forth  in  the  affidavit.^  And  in  such  cases  the  grounds  of 
such  belief  or  the  question  whether  there  has  been  such 
fraud  or  concealment  is  one  of  fact  to  be  determined,  on 
the  hearing,  from  all  the  circumstances.^ 

In  some  of  the  states  it  must  appear  from  the  affidavit 
that  the  property  fraudulently  transferred,  or  about  to  be 

>  Anderson  v.  Goff,  72  Cal.  65 ;  13  Pac.  Rep.  72. 
'  Burnett,  t;.  McCIuey,  92  Mo.  230 ;  4  S.  W.  Rep.  694. 
'  Curtis  V.  HoUingworth,  14  N.  J.  Law,  402  ;  Corbit  v.  Corbit,  oO  X.  J. 
Law,  363  ;  13  Atl.  Rep.  178. 

*  Keller  v.  Carr,  40  Minn.  428  ;  42  N.  W.  Rep.  292  ;  Lawson  v.  Adiard, 
46  Minn.  243 ;  48  N.  W.  Rep.  1019 ;  Andrews  v.  Mundy,  36  W.  Va.  22 ; 
14  S.  E.  Rep.  414 ;  Hanover  Nat.  Bank  v.  Stebbins,  23  N.  Y.  yupl.  529. 

^  Bank  of  Commerce  v.  Payne,  86  Ky.  446;  8  S.  \V.  Rep.  856;  Holland 
r.  Commercial  Bank,  22  Neb.  571  ;  36  N.  W.  Rep.  113;  National  Bank  of 
Commerce  v.  Whiteman  Pulp,  etc.,  Co.,  21  N.  Y.  Supl.  748. 

«  Mixon  V.  Holley,  26  S.  Car.  256 ;  2  S.  E.  Rep.  385. 

'  Solinsky  v.  Lincoln  Savings  Bank,  85  Tenn.  368;  4  S.  W.  Rep.  836; 
Roddey  v.  Erwin,  31  S.  Car.  36 ;  9  S.  E.  Rep.  729. 

*  Roddey  v.  Erwin,  31  S.  Car.  36;  9  S.  E.  Rep.  729;  Myers  r.  White- 
heart,  24  S.  Car.  196  ;  Wando  Phosphate  Co.  v.  Rosenberg,  31  S.  Car.  301 ; 
9  S.  E.  Rep.  969. 


532     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

disposed  of,  is  subject  to  execution.^  And  whether  it  must 
be  averred  or  not  the  property  must  be  shown  to  be  sub- 
ject to  execution,  else  the  disposition  of  it  can  not  be 
fraudulent.^ 

g.  Concealment  so  that  service  of  process  can  not  be  had,  or 
to  avoid  such  service. — Under  this  clause,  in  some  of  the 
states,  the  intent  with  which  the  defendant  conceals  him- 
self is  material.  It  is  not  sufficient,  therefore,  to  show  ab- 
sence merely,  without  any  showing  that  the  party  is  con- 
cealing himself  for  the  purpose  mentioned  in  the  statute.^ 
While,  under  other  statutes,  the  intent  is  held  to  be  im- 
material, if  the  concealment  is  such  as  to  prevent  the  serv- 
ice of  process.^  This  results  from  the  different  language 
used  in  different  statutes. 

k.  Debt  fraudulently  incurred. — The  fraud  made  ground 
for  an  attachment  must  relate  to  the  time  of  making  the 
contract,  or  incurring  the  indebtedness,  and  must  have 
been  perpetrated  for  the  purpose,  and  with  the  intent,  to 
procure  it.* 

"  Speaking  generally  a  debt  may  be  said  to  have  been 
fraudulently  contracted  for  two  reasons :  First,  when  a 
debtor  has  induced  his  creditor  to  sell  him  goods  and 
extend  to  him  credit  by  means  of  false  representations 
as  to  his  financial  condition,  or  as  to  his  means  and 
ability  of  paying  for  the  same;  and,  secondly,  when  a 
debtor  has  bought  goods  or  property  of  any  kind  on  credit 
with  a  preconceived  intention  of  getting  the  possession  of 
the  articles  bought,  and  disposing  of  them,  and  not  pay- 
ing for  the  same  at  any  time."  ^ 

So  an  attachment  will  lie  for  damages  resulting  from 
false  representations  whereby  one  is  induced  to  purchase 
land  and  pay  therefor  more  than  its  true  value  as  a  debt 
obtained  under  false  pretenses.^ 

1  Blair  v.  Smith,  114  Ind.  114 ;  15  N.  E.  Rep.  817. 

2  Head  r.  WoUner,  6  N.  Y.  Supl.  916. 

»  Wilkinson  v.  King,  81  Ala.  156 ;  8  Sou.  Rep.  189. 

*  Wade  Attach.,  sec.  98. 

*  Strauss  v.  Abrahams,  32  Fed.  Rep.  310,  313. 

«  Stanhope  v.  Swafford,  80  la.  45  ;  42  N.  W.  Rep.  450. 


\ 


ATTACHMENT.  5.33 

The  proceeding  can  not  be  maintained  in  aid  of  several 
claims,  a  part  only  of  which  have  been  fraudulently  con- 
tracted.^ A  showing  of  negligence  will  not  sustain  this 
ground  of  attachment.^     But  proof  of  embezzlement  will.^ 

i.  Obligations  criminally  incurred.  In  some  of  the  states, 
the  remedy  by  attachment  is  not  confined  to  actions  upon 
contract,  but  is  allowed  where  the  obligation  is  criminally, 
incurred.*  A  liability  incurred  by  the  commission  of  a 
crime  is  one  criminally  incurred.^ 

j.  ^Tiere  claim  sued  upon  is  not  yet  due.  An  attachment 
before  the  debt  is  due  is  usually  allowed  only  on  the 
ground  that  property  of  the  debtor  is  about  to  be  so  dis- 
posed of  or  removed  as  to  deprive  the  plaintifl'  of  a  resort 
to  it  for  the  satisfaction  of  his  claim  when  due.  There- 
fore, one  or  the  other  of  the  specific  grounds  upon  which 
the  writ  is  authorized  in  such  cases  must  be  shown  by  the 
afladavit.^  Therefore,  it  is  not  allowed  on  the  ground  of 
non-residence  alone,  where  there  is  property  within  the 
jurisdiction.^  An  order  of  court  authorizing  the  issuance 
of  the  writ  in  such  cases  is  required  in  some  of  the  states.^ 
And  under  such  a  statute,  a  writ  issued  by  the  clerk  with- 
out an  order  of  court  is  void.* 

k.  Sources  of  iiiformation  as  to  facts  averred.  It  is  some- 
times insufiicient  to  state  a  fact  positively  in  the  afiidavit, 
as  held  in  some  of  the  states,  where  the  same  is  made  by 
some  one  other  than  the  plaintiflr*.     The  party  making  the 

1  Estlow  V.  Hanna,  75  Mich.  219 ;  42  N.  W.  Rep.  812;  Myer  v.  Evans, 
27  Neb.  367  ;  43  N.  W.  Rep.  109. 
^  Rawlins  v.  Powers,  25  Neb.  681 ;  41  N.  W.  Rep.  651. 
3  Cole  V.  Aune,  40  Minn.  80 ;  41  N.  W.  Rep.  934. 

*  Wade  Attach.  99 ;  Creasser  v.  Young,  31  Ohio  St.  57  ;  Kuehn  v.  Pa- 
roni,  20  Nev.  203  ;  19  Pac.  Rep.  273. 

^  Kuehn  v.  Paroni,  20  Nev.  203  ;  19  Pac.  Rep.  273. 

*  Wearne  v.  France,  3  Wyo.  273  ;  21  Pac.  Rep.  703  ;  Wingo  v.  Purdy, 
87  Va.  472  ;  12  S.  E.  Rep.  970 ;  Cox  v.  Dawson,  2  Wash.  St.  381  ;  26  Pac 
Rep.  973  ;  Merchants  &  Farmers  Bank  v.  McKellar,  44  La.  Ann.  940 ;  11 
Sou.  Rep.  592. 

'  Wingo  V.  Purdy,  87  Va.  472 ;  12  S.  E.  Rep.  970. 

«  Kleine  v.  Nie,  88  Ky.  542 ;    11  S.  W.  Rep.  590 ;  Peoples  Bank  v. 
Bachelder,  51  Fed.  Rep.  130. 
»  Philpot  V.  Newman,  11  Neb.  299  ;  9  N.  W.  Rep.  94. 


534       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

affidavit  must  allege,  in  addition,  such  facts  or  circum- 
stances as  will  show  that  he  has  actual  knowleege  of  the 
fact  alleged.^  lie  must  show  the  sources  of  his  informa- 
tion.^    But  this  is  not  usually  required.^ 

I.  Additional  averments  where  affidavit  made  by  attorney  or 
agent.  Where  the  affidavit  by  an  attorney  or  agent  is  al- 
lowed, it  is  usually  upon  conditions,  for  example,  the  ab- 
sence of  the  plaintiff.^  And  the  existence  of  the  condi- 
tions is  usually  required  to  be  shown  in  the  affidavit."* 
But  a  failure  to  do  so  is  held  to  be  a  mere  irregularity  not 
affecting  the  jurisdiction  of  the  court  so  as  to  render  a 
judgment  under  it  void.*  It  would  be  a  fatal  objection, 
however,  on  a  motion  to  quash  the  writ,  made  at  the 
proper  time.* 

The  fact  that  the  party  making  the  affidavit  is  an  attor- 
ney or  agent  of  the  plaintiff  is  usually  required  to  be 
alleged  in  the  affidavit;^  and  the  fact,  when  alleged,  is  an 
issuable  one,  and  the  failure  to  sustain  it  by  proof,  when 
denied,  will  defeat  the  attachment.*  So  an  agent  or  attor- 
ney who  alleges  a  fact  positively  is  sometimes  required  to 
show,  in  addition,  that  he  has  been  so  situated  as  to  have 
actual  knowledge  of  the  fact.'  But  this  requirement  is 
unusual.^ 

3.  The  bond  or  U7idertaking . — The  giving  of  a  bond,  in 
substantial  compliance  with  the  requirements  of  the  stat- 
ute, is  necessary  to  uphold  the  attachment.*  But  a  bond 
is  not  required  in  all  cases,  and  where  it  is  not  required 
the  failure  to  give  it  does    not   affect  the  jurisdiction.^ 

^  McVicker  v.  Campanini,  2  N.  Y.  Supl.  577. 

*  Crowns  v.  Vail,  2  N.  Y.  Supl.  218 ;  Hamilton  v.  Steck,  5  N.  Y.  Supl. 
831. 

3  Sioux  Valley,  etc.,  Bank  v.  Kellogg,  81  la.  124 ;  46  N.  W.  Rep.  859. 

*  Wescott  r.  Sharp,  50  N.  J.  Law,  392 ;  13  Atl.  Rep.  243. 

*  Johnson  v.  Johnson,  31  Fed.  Rep.  700. 

®  McVicker  v.  Campanini,  2  N.  Y.  Supl.  577;  Hamilton  v.  Steck,  5  N, 
Y.  Supl.  831. 

''  Sioux  Valley,  etc.,  Bank  v.  Kellogg,  81  la.  124;  46  N.  W.  Rep.  859. 

8  Drake  Attach.,  sec.  115;  Clay  v.  Tapp  Leather  Co.,  79  Ga.  596;  7  S. 
E.  Rep.  256;  Enneking  v.  Clay,  79  Ga.  598;  7  S.  E.  Rep.  257. 

»  Olmsted  v.  Rivers,  9  Neb.  234 ;  2  N.  W.  Rep.  366 ;  Kenific  v.  Caul- 
field,  88  Va.  122  ;  13  S.  E.  Rep.  348. 


ATTACHMENT.  535 

And,  even  when  required  to  be  given,  the  failure  to  give 
it  is  held  to  be  an  irregularity,  merely,  not  affecting  the 
jurisdiction  of  the  court,  and  which  may  be  waived.^  So 
in  case  of  irregularities  in  the  bond.^ 

In  some  of  the  states  it  is  provided  by  statute  that  no 
writ  of  attachment  shall  be  invalid  by  reason  of  defects  in 
the  bond.'  But  in  other  states  it  is  held  that  the  court 
has  no  jurisdiction  where  no  bond,  or  a  fatally  defective 
one,  is  given.* 

Sometimes  certain  parties,  as,  for  example,  the  state,  or 
other  public  corporations  are  not  required  to  give  bond.^ 
In  some  of  the  states  the  bond  must  be  executed  bv  the 
plaintiff.^  In  others  it  is  sufficient  if  executed  by  others, 
as  sureties,  on  behalf  of  the  plaintiff.^  The  question  turns 
wholly  upon  the  requirements  of  the  statute  in  each  state. 
If  the  bond  is  required  to  be  executed  by  the  plaintiff*  and 
is  signed  only  by  strangers,  it  is  void.^  As  to  what  will 
constitute  a  sufficient  bond,  see  the  cases  cited  below.^ 

4.  The  writ  of  attachment. — In  order  to  apply  the  juris- 
diction of  the  court  to  any  particular  property,  and  au- 
thorize a  judgment  against,  and  a  sale  of  it  for  the  satis- 
faction of  the  plaintiff's  claim,  a  writ  of  attachment, 
conforming  to  the  requirements  of  the  statute,  must 
issue.^" 

1  Ward  V.  Howard,  12  Ohio  St.  158;  O'Farrell  v.  Stockman,  19  Ohio 
St.  296. 
'  Kramer  r.  Wellendorff,  129  Pa.  St.  547 ;  10  Atl.  Rep.  892. 

*  Jones  V.  Bank  of  Leadville,  10  Colo.  464 ;  17  Pac.  Rep.  272. 

*  Wagener  r.  Booker,  31  S.  Car.  375 ;  9  S.  E.  Rep.  1055. 
'  Drake  Attach.,  sec.  114  c. 

«  National  Ex.  Bank  v.  Stelling,  31  S.  Car.  360;  9  S.  E.  Rep.  1028. 

'  Eckman  v.  Hammond,  27  Neb.  611;  43  N.  W.  Rep.  397. 

«  Booker  v.  Smith,  16  S.  E.  Rep.  774. 

9  Rohrbough  v.  Leopold,  68  Tex.  254 ;  4  S.  W.  Rep.  460 ;  National  Ex. 
Bank  v.  Stelling,  31  S.  Car.  360;  9  S.  E.  Rep.  1028;  Wagener  v.  Booker, 
31  S.  Car.  375;  9  S.  E.  Rep.  1055;  Solinskey  v.  Young,  17  S.  W.  Rep. 
1083;  Louisville  N.  A.,  etc.,  Ry.  Co.  v.  Lake,  32  N.  E.  Rep.  590;  Booker 
V.  Smith,  16  S.  E.  Rep.  774. 

''^  Ante,  sec.  14;  Parks  v.  Watts,  112  Pa.  St.  4;  6  Atl.  Rep.  106;  Will- 
iamson V.  McCormick,  126  Pa.  St.  274;  17  Atl.  Rep.  591  ;  Byers  v.  Bran- 
non,  19  S.  W.  Rep.  1091. 


1 


536       COMMON  LAW,  EyUITV,  AND  STATUiUKY  JURISDICTION. 

In  most  of  the  states  the  writ  is  issued,  as  of  course,  by 
the  clerk  of  the  court,  upon  the  filing  of  the  affidavit  and 
an  undertaking,  when  required,  without  an  order  of  court. 
In  others  an  order  of  court  is  necessary,'  and  sometimes 
an  order  of  court  is  required  in  special  cases  and  not  in 
others.^ 

As  the  proceeding  is  auxiliary  to  the  main  action  it  is 
usually  required  that  the  writ  issue  at  the  time  of,  or  after, 
the  filing  of  the  complaint  or  issuance  of  the  summons. 
And  a  writ  issued  before  the  time  fixed  is  void.^  In  some 
of  the  states  the  writ  is  required  to  conform  to  and  recite 
the  facts  contained  in  the  affidavit;  in  others  it  is  required 
to  conform  to  the  complaint.  In  either  case  it  is  insuf- 
ficient if  it  varies  materially  from  the  one  or  the  other  as 
the  case  may  be.* 

Where  the  writ  is  required  to  be  made  returnable  on 
the  next  return  day  it  will  be  quashed  if  made  returnable 
at  a  later  time.  Such  a  writ  is  essentially  illegal  and  an 
appearance  to  the  action  will  not  cure  the  defect.^  The 
writ  is  insufficient  in  form  if  it  states  dift'erent  grounds  for  the 
attachment  in  the  alternative.^  Statutory  provisions  as  to 
what  the  writ  shall  contain  are  mandatory,  and  if  any  of 
the  matters  required  to  be  stated  are  omitted  the  writ 
can  not,  in  the  absence  of  express  statutory  authority 
therefor,  be  amended  by  inserting  them.^ 

5.  Levy  of  the  writ  and  proof  of  its  service.— A  levy  of 
the  writ  by  a  seizure  of  the  property  attaches  the  juris- 
diction of  the  court  to  the  property  thus  seized,  and  it  is 
from  that  time  in  the  custody  of  the  court  and  made  sub- 
ject to  any  judgment  that  may  subsequently  be  rendered. 

'  Loeb  V.  Smith,  78  Ga.  504;  3  S.  E.  Rep.  458. 

»  Kleine  v.  Nie,  88  Ky.  542;  11  S.  W.  Rep.  590;  Atkinson  v.  James,  10 
Sou.  Rep.  846;  Winchell  v.  McKenzie,  53  N.  AV.  Rep.  975. 

'  Kellar  v.  Stanley,  86  Ky.  240 ;  5  S.  W.  Rep.  477. 

*  Focke  V.  Hardeman,  67  Tex.  173;  2  S.  W.  Rep.  363 ;  Moore  v.  Corley, 
16  S.  W.  Rep.  787. 

5  Williamson  v.  McCormick,  126  Pa.  St.  274;  17  Atl.  Rep.  591.  But  see 
to  the  contrary,  Post  r.  Bird,  28  Fla.  1  ;  9  Sou.  Rep.  888. 

6  DintrufF  v.  Tuthill,  17  N.  Y.  Supl.  556. 

'  McDonald  v.  Kieferdorf,  18  N.  Y.  Supl.  763. 


ATTACHMENT.  537 

The  levy  on  the  property  vests  the  court  with  jurisdiction 
of  the  subject-matter.^  And,  as  we  have  seen,  this  seizure 
of  the  property  is  held,  in  some  of  the  cases,  to  be  the  one 
thing  essential  to  give  the  court  jurisdiction.^  And  cer- 
tainly such  seizure  or  other  levy  is  necessary  to  bring  the 
property  within  the  jurisdiction  of  the  court  and  protect 
it  from  the  claims  of  others,  or  a  removal  of  it  from  the . 
jurisdiction,  until  a  judgment  is  recovered  that  will  au- 
thorize its  sale  to  satisfy  the  plaintifi's  claim.^  And  this  is 
the  primary  object  and  purpose  of  the  proceeding  in  at- 
tachment.* But,  as  we  have  seen  above,  some  of  the 
courts  have  held  that  the  question  whether  the  property 
was  attached  or  not  is  not  a  jurisdictional  question.^ 

The  return  of  the  officer  or  other  proof  of  service  must 
show  that  a  levy  was  made  in  the  manner  requiied  by  the 
statute.^  The  levy  of  the  writ,  where  there  is  no  personal 
service  on  the  defendant,  not  only  Hxes  and  preserves  the 
lien  of  the  plaintiff,  but  it  measures  and  limits  the  juris- 
diction of  the  court  which  extends  no  further  than  to  dis- 
pose of  the  property  levied  upon.*^  And  in  order  to  pre- 
serve the  lien  and  continue  the  jurisdiction  the  possession 
of  the  property,  if  movable,  must  be  maintained  unless 
released  by  the  giving  of  bond  as  provided  by  law.^ 

The  true  rule  seems  to  be  that  both  a  levy  on  the  prop- 
erty and  notice  to  the  non-resident  are  necessary  to  give 

1  Haywood  v.  Collins,  60  111.  328;  Robertson  v.  Hoge,  83  Va.  124;  1  S. 
E.  Rep.  667;  Tiffany  v.  Glover,  3  G.  Greene,  387;  Lessee  of  Paine  v. 
Mooreland,  15  Ohio,  436;  Root  v.  Columbus,  H.  V.  &  T.  R.  Co.,  45  Ohio 
St.  222 ;  12  N.  E.  Rep.  812. 

"  Cooper  V.  Reynolds,  10  Wall.  308. 

'  Ante,  sec.  14. 

*  Dorrier  v.  Masters,  83  Va.  459;  2  S.  E.  Rep.  927;  Reed  v.  :Maben,  21 
Neb.  696;  33  N.  W.  Rep.  252. 

^  Kruse  v.  Wilson,  79  111.  233. 

*  Robertson  v.  Hoge,  83  Va.  124 ;  1  S.  E.  Rep.  667  ;  Offterdinger  v.  Ford, 
86  Va.  917;  12  S.  E.  Rep.  1. 

'  Ante,  sec.  14;  McKinney  v.  Collins,  88  X.  Y.  216;  Lutz  v.  Kelly,  47 
la.  310;  Miller  v.  Dungan,  36  N.  J.  Law,  21 ;  Kenney  v.  Georgen,  36  Minn. 
190;  31  N.  W.  Rep.  210. 

*  Ante,  sec.  14;  Root  v.  Columbus,  H.  V.  &  T.  R.  Co.,  45  Ohio  St.  222; 
12  N.  E.  Rep.  812. 


638      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

the  court  such  jurisdiction  as  will  authorize  a  final  judg 
ment  in  any  form.^  Where  a  statute  requires  the  writ  to 
be  served  within  a  specified  time,  the  fact  that  the  defend- 
ant has  prevented  service  within  the  time  by  concealing 
himself  is  immaterial.  If  service  is  not  made  as  required, 
the  writ  must  be  quashed.^  As  to  what  will  amount  to  a 
suflicient  levy,  see  cases  cited  below.^  And  also  the  proof 
of  such  levy.^ 

In  some  of  the  states,  personal  service  of  the  attaching 
papers  is  required  to  be  made  on  the  defendant.^  But 
such  personal  service  may  be  waived,  by  the  debtors  ab- 
sconding, or  otherwise.^  Where  there  is  no  personal  serv- 
ice on,  or  appearance  by,  the  defendant,  conditions  subse- 
quent to  the  levy  of  the  writ  are  held  to  be  jurisdictional, 
and  a  failure  to  comply  with  such  conditions  is  held  to 
render  a  judgment  by  default  absolutely  void/ 

6.  Service  of  process  on  the  defendant.  The  proper  issu- 
ance and  levy  of  the  writ  will,  as  we  have  seen,  give  the 
court  jurisdiction  of  the  subject-matter.  But  in  order  to 
authorize  the  court  to  proceed  to  a  final  judgment,  and  a 
disposition  of  the  property  attached,  notice,  in  the  manner 
provided  by  law,  must  be  given  to  the  defendant.^ 

*  Ante,  sec.  14 ;  Drake  Attach.,  sees.  436,  437 ;  Lutz  v.  Kelly,  47  la. 
309  ;  Darrance  v.  Preston,  IS  la.  396. 

^  Luding  V.  Blum,  18  N.  Y.  Supl.  69. 

3  Dorrier  v.  Masters,  83  Va.  459 ;  2  S.  E.  Rep.  927  ;  Winner  v.  Hoyt,  68 
Wis.  278 ;  32  N.  W.  Rep.  128 ;  Root  v.  Columbus,  H.  V.  &  T.  R.  Co.,  45 
Ohio  St.  222 ;  12  N.  E.  Rep.  812 ;  Hibbard  v.  Zenor,  75  la.  471 ;  39  N.  W. 
Rep.  714;  Blake  v.  Rider,  36  Kan.  693 ;  14  Pac.  Rep.  280;  Gumbel  v.  Pit- 
kin, 124  U.  S.  131 ;  8  Sup.  Ct.  Rep.  379 ;  Barney  v.  Rockwell,  60  Vt.  444; 
15  Atl.  Rep.  163;  Buehler  v.  De  Lemos,  84  Mich.  554;  48  N.  W.  Rep.  42; 
Offterdinger  v.  Ford,  86  Va.  917  ;  12  S.  E.  Rep.  1  ;  Armour  Bros.  Bank- 
ing Co.  V.  Smith,  20  S.  W.  Rep.  690. 

*  White  V.  O'Bannon,  86  Ky.  93 ;  5  S.  W.  Rep.  346 ;  Oflfterdinger  r. 
Ford,  86  Va.  917 ;  12  S.  E.  Rep.  1  ;  1  Am.  &  Eng.  Enc.  of  Law,  921 ; 
Ahern  v.  Purnell,  62  Conn.  21 ;  25  Atl.  Rep.  393. 

^  Thomas  v.  Richards,  69  Wis.  671  ;  35  N.  W.  Rep.  42  ;  Lehman  r. 
Broussard,  12  Sou.  Rep.  504. 

« Thomas  v.  Richards,  69  Wis.  671 ;  35  N.  W.  Rep.  42. 

'  Steere  v.  Vanderberg,  67  Mich.  530 ;  35  N.  W.  Rep.  110. 

®  Ante,  sec.  33 ;  Drake  Attach.,  sees.  5,  436,  437,  446b  ;  Haywood  v.  Mc- 
Crory,  33  111.  459 ;  Jarvis  v.  Barrett,  14  Wis.  591 ;  Haywood  v.  Collins,  60 


ATTACHMENT.  539 

Usually,  personal  service  is  required  where  the  defend- 
ant is  a  resident,  but  not  always.  Where  a  certain  time  is 
given  by  statute  within  which  to  make  personal  service, 
after  which  constructive  notice  is  authorized,  constructive 
notice  before  the  full  time  for  personal  service  has  expired 
is  void.' 

The  federal  courts  have  no  jurisdiction  in  suits  founded 
on  foreign  attachment  without  personal  service  of  process.^ 

If  the  defendant  is  a  non-resident,  constructive  service  is 
authorized.^  And  in  some  of  the  states,  no  summons  need 
issue,  publication  of  notice  being  authorized  on  a  showing 
of  non-residence  by  tha  affidavit.*  So,  where  it  is  shown 
that  by  concealment  or  otherwise  the  defendant  is  avoid- 
ing the  personal  service  of  process.® 

Sometimes  service  on  the  defendant  is  required  to  be 
made  within  a  specified  time  after  the  issuance  of  the  writ 
of  attachment.  This  is  a  condition  that  must  be  per- 
formed in  order  to  uphold  the  writ.  Therefore,  if  it  is 
not  complied  with,  the  writ  becomes  void.® 

The  effect  of  personal  and  constructive  service  is  differ- 
ent. In  case  of  personal  service,  a  personal  judgment 
may  be  rendered  against  the  defendant,  binding  upon  him 
and  all  of  his  property.^  If  the  service  is  constructive, 
the  court  has  no  power  to  render  a  personal  judgment 
against  a  non-resident,  or,  if  the  judgment  is  personal  in 

111.  328;  Wescott  v.  Archur,  12  Neb.  345  ;  11  N.  W.  Re]).  491 ;  Foyles  v. 
Kelso,  1  Blkf.  (Ind.)  215;  Waples  Attach.  321  et  seq.;  Lackett  v.  Rum- 
baugh,  45  Fed.  Rep.  23 ;  Woolkins  v.  Haid,  49  Mich.  299  ;  13  N.  W.  Rep. 
598;  McKinney  v.  Collins,  88  N.  Y.  216 ;  Lutz  r.  Kelly,  47  la.  310 ;  Dar- 
rance  v.  Preston,  18  la.  396;  Drake  Attach.,  sees.  436,  437  ;  Fisk  r.  Rei- 
gelman,  75  Wis.  499;  43  N.  W.  Rep.  1117;  Martin  r.  Central  Vermont 
R.  Co.,  3  N.  Y.  Supl.  82. 

'  Hubbell  V.  Rhinesmith,  85  Mich.  30 ;  48  N.  W.  Rep.  178. 

'  Perkins  v.  Hendryx,  40  Fed.  Rep.  657  ;  Toland  v.  Sprague,  12  Pet.  300. 

'  Ante,  sec.  14;  Jarvis  v.  Barrett,  14  Wis.  591 ;  Haywood  v.  Collins,  60 
111.  328;  Darrance  r.  Preston,  18  la.  396. 

♦Wescott  V.  Archur,  12  Neb.  345;  11  N.  W.  Rep.  491. 

*  Thomas  v.  Richards,  69  Wis.  671  ;  35  N.  W.  Rep.  42. 

*  Rhode  Island,  etc.,  Co.  v.  Keeney,  48  N.  W.  Rep.  341 ;  McLaughlin  v. 
Wheeler,  50  N.  W.  Rep.  834;  Union  Distilling  Co.  r.  Ruser,  16  N.  Y. 
Supl.  50;  Jones  i-.  Warnick,  49  Kan.  63  ;  30  Pac.  Rep.  115. 

'  Ante,  sees.  35,  36,  37,  38. 


540       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

form,  it  can  have  no  effect  other  than  to  subject  the  property- 
attached  to  sale  for  the  satisfaction  of  the  plaintiffs  claim.^ 

Whether,  in  case  of  an  insufficient  service  the  pro- 
ceedings are  absolutely  void,  and  a  title  obtained  by  a 
sale  of  the  property  subject  to  collateral  attack,  there  is 
a  disagreement  in  the  decided  cases.^  It  has  frequently 
been  held  that  a  seizure  of  the  property  gives  jurisdic- 
tion, and  that,  therefore,  the  title  of  a  purchaser  can 
not  be  defeated  in  a  collateral  proceeding  by  showing 
a  failure  to  s-ive  notice  to  the  defendant.^  But  the  better 
rule  seems  to  be  that  a  failure  to  notify  the  defendant 
renders  the  proceeding  void  and  a  sale  under  it  invalid.'* 
Such  is  the  rule  in  other  cases  where  notice  is  required. 
And  the  fact  that  property  has  been  attached  ought  not 
to  change  the  rule.^ 

The  discrepancy  between  the  decisions  of  the  federal 
and  state  courts  on  this  subject  arises,  apparently,  from  the 
fact  that  the  former  do  not  regard  the  making  of  the 
affidavit  and  giving  notice  as  jurisdictional,  while  the  state 
courts  have  almost  uniformly  taken  a  different  view  of  it 
and  held  that  they  are  jurisdictional.^  The  different  kinds 
of  service  of  process,  and  how  made  and  proved  in  geu- 

'  Ante,  Bee.  14;  Drake  Attach.,  sec.  437;  Clymore  v.  Williams,  77  111. 
618;  Lackett  v.  Rumbaugh,  45  Fed.  Rep.  23;  McKinney  v.  Collins,  88  N. 
Y.  216  ,  Lutz  V.  Kelly,  47  la.  310  ;  Darrance  v.  Preston,  18  la.  396  ;  Miller 
V.  Dungan,  36  N.  J.  Law,  21 ;  Fitzsimmons  v.  Marks,  66  Barb.  (N.  Y.) 
333;  Kenney  t'.  Goergen,  36  Minn.  190;  31  N.  W.  Rep.  210;  Anderson 
V.  GoflF,  72  Cal.  65;  13  Pac.  Rep.  73;  Pennoyer  v.  NeflF,  95  U.  S.  714. 

'  Drake  Attach.,  sees.  447,  448;  1  Am.  &  Eng.  Enc.  of  Law,  935. 

3  Cooper  i;.  Reynolds,  10  Wall.  308;  Mathews  v.  Densmore,  109  U.  S. 
216;  3Sup.  Ct.  Rep.  126;  Lessee  of  Paine  v.  Mooreland,  15  Ohio,  436; 
Beech  v.  Abbott,  6  Vt.  586;  Berrien  r.  Rogers,  43  Fed.  Rep.  467;  Mohr 
V.  Manierre,  101  U.  8.  417. 

*  Warner  v.  Webster,  13  Ohio,  505 ;  Haywood  v.  Collins,  60  111.  328 ; 
Vairin  v.  Edmonson,  5  Gil.  (111.)  270;  Clymore  v.  Williams,  77  111.  618; 
Wescott?;.  Archur,  12  Neb.  345;  11  N.  W.  Rep.  491 ;  Mathews  v.  Dens- 
more, 43  Mich.  461;  5  N.  W.  Rep.  669;  Waples  Attach.  321  et  seq.; 
Borders  v.  Murphy,  78  111.  81 ;  McKinney  v.  Collins,  88  N.  Y.  216 ;  Brown 
V.  Carroll,  16  R.  I.  604 ,   18  All.  Rep.  283 ;  Anderson  v.  Coburn,  27  Wis.  .558. 

="  Ante,  sees.  32,  33. 

«  Berrien  >.  Rogers,  43  Fed.  Rep.  467;  Erstein  v.  Rothschild,  22  Fed- 
Rep.  61;  Waples  Attach.,  321  et  seq. 


ATTACHMENT.  541 

era],  have  received  attention  elsewhere.^  And  the  rules 
there  laid  down  apply  to  attachment  proceedings.^  The 
difference  between  no  service  and  defective  or  insufficient 
service  as  to  its  effect  upon  the  jurisdiction  of  the  court 
in  case  of  a  collateral  attack,  which  has  been  heretofore 
pointed  out,  should  not  be  overlooked  in  this  connection.^ 

Sometimes  the  writ  of  attachment  is  the  only  process 
provided  for  and  serves  as  a  summons.  In  [such  cases,  if 
the  writ  is  quashed,  the  whole  proceeding  falls.  The  writ 
can  not  be  upheld  as  a  summons  and  give  jurisdiction  to 
render  a  personal  judgment.*  Sometimes  personal  service 
of  the  writ  of  attachment  and  other  papers  is  required.* 
But,  generally,  where  the  defendant  is  personally  served 
in  the  main  action,  no  personal  service  of  the  papers  in 
the  attachment  proceedings  is  necessary.  The  service  of 
the  summons  gives  jurisdiction  of  his  person,  and  the  levy 
of  the  writ  of  attachment  gives  jurisdiction  of  the  prop- 
erty.^ 

If  the  summons  in  the  main  action  is  required  to  be  re- 
turned within  a  certain  time,  in  order  to  give  the  court 
jurisdiction,  the  jurisdiction  in  the  attachment  proceeding 
lapses  by  a  failure  to  make  such  return  within  the  time.^ 

7.  Proof  of  service  of  process. — The  jurisdiction  of  the 
court  does  not  depend  upon  the  proof  of  service  but  upon 
the  fact  that  service  was  made.^  But  where  the  validity 
of  the  judgment  depends  upon  the  proof  of  the  fact,  ser- 
vice must  be  proved  in  the  manner  required  by  the  stat- 
ute.^ How  the  proof  may  be  made  and  its  effects  have 
been  considered  in  another  place.^ 

^  Ante,  sees.  35-39.  ^  Vairin  v.  Edmonson,  5  Gil.  (111.)  270. 

'  Ante,  sees.  13,  22,  23,  36,  40;  Gregg  v.  Thompson,  17  la.  107  ;  1  Am. 
&  Eng.  Enc.  of  Law.  935,  936. 

*  Kingsbury  v.  Borland,  64  Mich.  59;  31  N.  W.  Rep.  620. 

"  Thomas  v.  Richards,  69  Wis.  671 ;  35  N.  W.  Rep.  42. 

«  Bailey  v.  Valley  Nat'l  Bank,  127  111.  332;  19  N.  E.  Rep.  695. 

'  Brown  v.  Carroll,  16  R.  I.  604:  18  Atl.  Rep.  283. 

"  Ante,  sec.  39. 

»  Haywood  r. Collins,  60  111.  328;  Vairin  /•.  Edmonson,  5  Gil.  (111.)  270; 
Cariker  v.  Anderson,  27  111.  358;  Clymore  r.  Williams,  77  111.  618;  Foyles 
V.  Kelso,  1  Blkf.  (Ind.)  215. 


542      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

8.  Waiver  of  defects  in  the  proceedings. — The  defendant 
will,  by  a  general  appearance  to  the  action,  waive  all  de- 
fects in  the  notice  to  him  or  an  entire  failure  to  give  such 
notice.^  So,  if  he  appears  to  the  proceeding  in  attach- 
ment, he  thereby  waives  defects  in  such  proceedings,^  and 
by  appearing  and  objecting  on  certain  grounds  others 
which  might  have  been  urged  are  waived.^  But  an  ap- 
pearance and  waiver  of  notice  to  the  defendant  does  not 
necessarily  w^aive  essential  defects  in  the  jurisdictional 
proceedings  resulting  in  the  attachment.* 

It  would  seem  on  principle  that  an  appearance  to  the 
main  action  could  not  have  the  efiect  to  cure  defects 
in  the  proceedings  to  acquire  jurisdiction  of  the  sub- 
ject-matter, and  which  are  by  statute  made  conditions 
precedent  to  and  necessary  to  vest  jurisdiction  in  the 
court.^ 

1  Drake  Attach.,  sec.  446a;  Van  Diver  ?■.  Buckley,  1  Sou.  Rep.  63:5; 
Tuller  r.  Beck,  15  N.  E.  Rep.  396. 

^  Blackwood  v.  Jones,  27  Wis.  498  ;  First  National  Bank  r.  Greenwood, 
48  N.W.  Rep.  421  ;  Roy  r.  Union  Mercantile  Co.,  26  Pac.  Rep.  996;  Drake 
Attach.,  sec.  446a;  Williams  v.  Stewart,  :]  Wis.  773. 

3  Hillyer  v.  Biglow,  47  Kan.  473 ;  28  Pac.  Rep.  150. 

*  Wade  Attach.,  sec.  72;  Lackett  v.  Rumbaugh,  45  Fed.  Rep.  23;  Steen 
V.  Norton,  45  Wis.  412;  Noyes  v.  Canady,  30  Fed.  Rep.  665;  Drake 
Attach.,  sec.  446a. 

^  Lackett  r.  Rumbaugh,  45  Fed.  Rep.  23;  Steen  v.  Norton,  45  Wis.  412; 
Noyes  v.  Canady,  30  Fed.  Rep.  665. 

"  No  express  waiver  of  a  want  of  summons  appears  of  record,  and  there 
was  no  pleading  to  the  complaint.  The  general  appearance  of  defendant 
waived  his  personal  privilege  of  being  sued  only  in  his  own  district,  and 
it  would  have  waived  defect  of  merely  irregular  process,  if  any  had  been 
issued;  but  it  does  not  and  can  not  waive  matters  relating  to  the  juris- 
dictional power  of  the  court.  Houston  v.  Porter,  supra;  Creighton  v. 
Kehr,  20  Wall.  8;  Harkness  v.  Hyde,  98  U.  S.  476;  Cooley  Const.  Lim. 
378.  When  the  defendant  entered  an  appearance  he  by  implied  con- 
sent became  a  party,  at  that  time,  to  the  pending  action.  His  appear- 
ance was  merely  equivalent  to  the  service  of  process  to  commence  a  new 
action,  and  did  not  by  relation  revive  a  suit  that  the  law  had  determined 
to  be  at  an  end.  Jurisdiction  generally  operates  for  present  and  pros- 
pective purposes,  and  only  in  a  few  instances  has  a  retroactive  effect. 
A  court  may  at  a  subsequent  term,  by  a  nunc  pro  tunc  order,  amend  its 
records  so  as  to  make  them  speak  the  truth,  and  may  allow  amend- 
ments of  mere  irregularities  or  mistakes  in  proceedings  over  which  it 


ATTACHMENT.  543 

It  has  been  held,  however,  that  if  a  defendant  vohyi- 
tarily  appears  to  the  action,  pending  publication  of  notice, 
and  consents  that  the  publication  cease,  he  thereby  waives 
the  full  publication  necessary  to  give  the  court  jurisdiction 
over  the  attachment  proceedings.*  And  a  general  appear- 
ance in  the  main  action  has  been  given  the  effect  of  waiv- 
ing the  insufficiency  of  an  essential  defect  in  the  affidavit.^ 
A  defect  in  the  affidavit,  not  rendering  it  void,  is  waived 
by  a  failure  to  make  objection  to  it  at  the  proper  time.^ 

Where  conditions  subsequent  to  the  levy  are  required 
to  be  complied  with,  as,  for  example,  personal  service  of 
the  attaching  papers  on  the  defendant,  the  levy  confers 
jurisdiction  and  the  subsequent  conditions  maybe  waived.* 

It  is  said,  generally,  that  "  any  thing  may  be  waived  by 
the  defendant,  which  is  substantially  no  injustice  to  the 
other  creditors,  or  is  not  intended  to  guard  their  rights."^ 
So  it  is  held  that,  as  the  giving  of  an  undertaking  or  bond 
is  for  the  benefit  of  the  defendant  alone,  he  may  waive  it, 
and  that  a  failure  to  give  it  is  a  mere  irregularity  not  af- 
fecting the  jurisdiction  of  the  court.^ 

had  jurisdiction,  but  can  not  supply  a  want  of  jurisdiction  as  to  pre- 
vious action.  Even  a  legislative  statute  can  not  make  valid  the  pro- 
ceedings of  a  court  which  were  void  for  want  of  jurisdiction  over  the 
parties.  Cooiey  Const.  Lim.  107,  283.  In  issuing  the  warrant  of  attach- 
ment in  this  case,  and  making  an  order  of  publication  to  give  validity 
to  the  proceedings,  the  clerk  acted  without  authority  of  law,  and  con- 
trary to  law."     Lackett  r.  Kumbaugh,  45  Fed.  Rep.  23,  31. 

•  Tuller  V.  Beck,  15  N.  E.  Rep.  3*96. 

'^  Blackwood  v.  Jones,  27  Wis.  498;  Van  Diver  v.  Buckley,  1  Sou.  Rep. 
633;  Gunn  Hardware  Co.  v.  Deneson,  83  Mich.  40;  4(j  X.  W.  Rep.  940; 
Barnett  r.  Raybnrn,  16  S.  W.  Rep.  537;  Bollinger  r.  Gallagher,  144  Pa. 
St.  205;  22  Atl.  Rep.  815;  Dunn  v.  Crocker,  22  Ind.  324. 

^  Landfair  v.  Lowman,  50  Ark.  446;  8  S.  W.  Rep.  188;  Horton  r.  ^Fil- 
ler,  84  Ala.  537;  4  Sou.  Rep.  370. 

*  Thomas  v.  Richards,  C9  Wis.  671 ;  35  N.  W.  Rep.  42.  But  see,  as  to 
the  effect  of  a  failure  to  comply  with  subsequent  conditions  in  case  of  a 
judgment  by  default,  Steere  c.  Vanderberg,  67  Mich.  530;  35  N.  W.  Rep. 
110. 

^  Ward  r.  Howard,  12  Ohio  St.  158,  161  ;  Root  v.  Columbus,  H.  V.  &  T. 
R.  Co.,  45  Ohio  St.  222;  12  X.  E.  Rep.  812. 

«  O'Farrell  v.  Stockman,  19  Ohio  St.  296  ;  Root  r.  Columbus,  H.  V.  &  T. 
R.  Co.,  45  Ohio  St.  222 ;  12  N.  E.  Rep.  812. 


544       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

The  giving  of  a  delivery  bond  has  been  held  in  some 
cases  to  be  a  waiver  of  defects  in  the  prior  proceedings.' 
So  of  an  agreement  that  the  property  attached  may  be 
sold  aud  the  proceeds  held  by  the  sheriff?  A  motion  to 
vacate  an  attachment  is  not  waived  by  filing  affidavits 
controverting  the  facts  alleged  as  a  ground  for  the  issu- 
ance of  the  writ.^  A  special  appearance  may  be  entered 
to  question  the  jurisdiction  of  the  court,  and  thus  avoid  a 
waiver  of  defects.* 

9.  Amendments.  In  some  of  the  states,  there  are  special 
statutory  provisions  authorizing  amendments  of  the  pro- 
ceedings in  attachment,  including  the  affidavit,^  and  the 
filing  of  a  new  affidavit  or  bond  is  permitted.^  The  right 
to  amend  is  not  confined  to  matters  of  form,  in  some  of 
the  states,  but  is  allowed  as  to  matters  of  substance.^  In 
others,  amendments  as  to  matters  of  form  only  are  al- 
lowed.* In  others,  general  provisions  authorizing  amend- 
ments are  held  to  apply  to  such  proceedings,  while  in 
others  the  right  to  amend  any  of  the  proceedings  neces- 
sary to  give  jurisdiction  in  case  of  an  omission  of  any  of 
the  essential  requirements  is  wholly  denied.^ 

In  the  federal  courts,  amendments  are  allowed  where 
essential  averments  are  omitted  from  the  affidavit,  and 
that  where  the  statute  of  the  state  as  construed  b}'  the 
state  court  does  not  authorize  such  amendments.'"     But 

^  New  Haven  Lumber  Co.  v.  Raymond,  76  la.  225 ;  40  N.  W.  Rep.  820. 

*  Wickham  v.  Nalty,  41  La.  Ann.  284 ;  6  Sou.  Rep.  123. 
3  Salmon  v.  Mills,  49  Fed.  Rep.  333. 

*  Fremont  Cultivator  Co.  v.  Fulton,  103  Ind.  393;  3  N.  E.  Rep.  1.35. 

s  Campbell  v.  Whetstone,  3  Scam.  (111.)  361;  Kruse  r.  Wilson,  71)  111. 
233;  Musgrove  v.  Mott,  90  Mo.  107;  2  S.  W.  Rep.  214;  Booth  r.  Reese, 
26  111.  45;  Burnett  v.  McCluey,  92  Mo.  230;  4  S.  W.  Rep.  694;  Richards 
V.  Bestor,  90  Ala.  352;  8  Sou.  Rep.  30;  Salmon  >:  Mills,  49  Fed.  Rep.  333. 

6  Booth  V.  Rees,  26  111.  45;  Bailey  v.  Valley  Nat'l  Bank,  127  111.  332;  19 
N.  E.  Rep.  695;  Dalsheimer  v.  McDaniel,  12  Sou.  Rep.  338. 

'  Richards  v.  Bestor,  90  Ala.  352 ;  8  Sou.  Rep.  30 ;  Sheldon  v.  Kivett, 
110  N.  Car.  408;  14  S.  E.  Rep.  970. 

8  East,  etc.,  Lumber  Co.  v.  Warren,  78  Tex.  318;  14  S.  W.  Rep.  783. 

*  Wade  Attach.,  sec.  3;  Winters  v.  Pearson,  72  Cal.  553;  14  Pac.  Rep. 
304 ;  Freer  v.  White,  91  Mich.  74 ;  51  N.  W.  Rep.  807. 

1"  Erstein  v.  Rothschild,  22  Fed.  Rep.  61 ;  Tilton  v.  Cofield,  93  U.  S.  163. 


I 


ATTACHMENT.  545 

there  must  be  something  to  amend.  Therefore,  if  the  affi- 
davit is  void,  and  not  merely  voidable,  it  can  not  be 
amended,^  An  affidavit  can  not  be  so  amended  as  to  add 
a  new  cause  for  attachment  vrhich  existed  when  the  same 
was  made.'  The  return  of  an  officer  may  be  amended  to 
conform  to  the  facts.^ 

10.  How  sufficiency  of  proceedings  may  be  tested.  The  suf-- 
ficiency  of  the  proceedings  may  be  tested  in  diiFerent 
ways.  If  the  defect  appears  on  the  face  of  any  of  the 
proceedings,  a  motion  to  quash  the  writ  is  proper/  or  a 
motion  to  dismiss  the  proceeding.^  If  the  proceedings  are 
regular  on  their  face,  and  it  is  claimed  that  any  of  the 
facts  appearing  therefrom  do  not  exist,  a  motion  to  quash, 
supported  by  proof  by  affidavit  or  otherwise,  may  be  re- 
sorted to.  In  such  cases,  the  question  to  be  tried  is  one 
of  fact,  however  the  question  may  be  raised.  And  to  dis- 
prove the  existence  of  the  grounds  of  attachment  is  to 
defeat  the  jurisdiction.^  And  upon  such  issue  the  burden 
is  upon  the  plaintiff,  and  he  must  prove  the  allegations  set 
forth  in  his  affidavit,  or  enough  of  them  to  support  the 
attachment.^  But  no  allegation  or  fact  going  to  the 
merits  of  the  action  can  be  considered  on  a  motion  to 
dissolve.^ 

A  plea  in  abatement  is  proper.'     In  some  of  the  states 

^  Swearingen  r.  Howser,  37  Kan.  126;  14  Pac.  Rep.  436;  Wagener  v. 
Booker,  31  S.  Car.  375 ;  9  S.  E.  Rep.  1055 ;  Moore  v.  Neill,  12  S.  E.  Rep. 
222. 

^  Brookmere  v.  Rosa,  34  Neb.  227  ;  51  N.  W.  Rep.  840. 

3  Downs  V.  Flanders,  150  Mass.  92 ;  22  N.  E.  Rep.  585. 

*  1  Am.  &  Eng.  Enc.  of  Law,  931. 

^  Loeb  V.  Smith,  78  Ga.  504;  3  S.  E.  Rep.  458. 

*  Ante,  sec.  14 ;  Fiske  v.  Anderson,  33  Barb.  (N.  Y.)  71 ;  Seville  v.  Wag- 
ner, 46  Ohio  St.  52;  IS  N.  E.  Rep.  430. 

'  Seville  v.  Wagner,  46  Ohio  St.  52;  18  N.  E.  Rep.  430;  Kuehn  v.  Pa- 
roni,  20  Nev.  203 ;  19  Pac.  Rep.  273 ;  Becker  v.  Langford,  39  Kan.  35 ;  17 
Pac.  Rep.  648. 

«  Olmsted  v.  Rivers,  9  Neb.  234 ;  2  N.  W.  Rep.  366 ;  Hermann  v.  Ame- 
dee,  30  La.  Ann.  393;  Kuehn  v.  Paroni,  20  Nev.  203 ;  19  Pac.  Rep.  273. 

«  Horton  v.  Miller,  84  Ala.  537 ;  4  Sou.  Rep.  370 ;  Stadder  v.  Jacobs,  12 
Sou.  Rep.  444. 
35 


• 


546       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

issues  are  regularly  formed  in  the  attaclinient  proceedings, 
where  the  question  is  one  of  fact  and  tried  with  the  main 
action.^  Sometimes  tlie  defect  can  only  he  reached  by  a 
rule  on  the  plaintifi"  to  show  cause  why  the  writ  should 
not  be  dissolved.^  A  court  of  equity  has  jurisdiction  to 
set  aside  an  attachment  on  the  ground  of  fraud  in  making 
the  affidavit.' 

Whatever  the  mode  of  attack  may  be,  it  must  be  made 
before  linal  judgment  in  the  action  under  the  practice 
usually  prevailing  in  the  difierent  states,  for  the  reason 
that  the  attachment  has,  upon  the  linal  judgment  being 
rendered  in  favor  of  the  plaintiiF,  served  its  purposes.*  But 
where  a  separate  issue  has  been  made,  pending  the  main 
action,  upon  the  facts  alleged  in  support  of  the  attach- 
ment, a  judgment  in  favor  of  the  plaintiff,  in  the  action, 

1  Prunk  V.  Williams,  28  Ind.  523 ;  Dunn  v.  Crocker,  22  Ind.  324. 

»  Adair  v.  Stone,  81  Ala.  113;  1  Sou.  Rep.  768. 

'  Byles  V.  Rowe,  64  Mich.  522;  31  N.  W.  Rep.  463. 

*  Reed  v.  Maben,  21  Neb.  696;  33  N.  W.  Rep.  252. 

"Attachment  is  a  proceeding  ancillary  to  the  main  action,  in  which  it 
is  allowed.  If  the  main  action  is  attacked  and  overthrown,  the  attach- 
ment goes  with  it.  On  the  other  hand,  it  often  happens  that,  while  the 
cause  of  action  is  lawful  and  just,  the  ground  of  attachment  is  mistaken 
or  false;  hence  judgment  must  be  rendered  for  the  plaintiff  on  the 
merits,  but  the  attachment  must  be  dissolved.  As  a  matter  of  practice, 
however,  if  no  ground  of  attachment  exists,  or  the  order  has  been  is- 
sued without  the  proper  affidavit  or  bond  as  required  by  statute,  the  at- 
tention of  the  court  must  be  called  thereto  in  some  appropriate  manner, 
and  the  question  of  sufficiency  settled  before  the  final  judgment  in  the 
case.  The  sole  object  of  an  attachment  is  that  the  property  of  the  debtor 
may  be  taken  into  the  custody  of  law  and  preserved,  so  that  it  may  be 
applied  to  the  payment  of  the  judgment  of  the  plaintiff  when  obtained. 
It  therefore  follows  that,  when  this  proceeding  has  answered  its  pur- 
pose, it  would  be  idle  to  go  back  and  inquire  into  its  sufficiency.  Un- 
der the  system  of  practice  which  formerly  prevailed  in  some  of  the 
states,  where  actions  were  commenced  by  attachment,  it  has  been  held 
that  when,  upon  the  final  trial,  it  appeared  from  the  pleadings  or  evi- 
dence in  the  case,  it  was  one  not  proper  to  be  commenced  by  attach- 
ment, the  cause  would  be  dismissed.     See  P^lliott  v.  Jackson,  3  Wis.  649. 

"  But  this  rule  is  not  applicable  to  our  present  system  of  practice, 
where,  as  above  stated,  the  order  of  attachment  is  an  ancillary  proceed- 
ing."   Reed  v.  Maben,  21  Neb.  696 ;  33  N.  W.  Rep.  252,  253. 


GARNISHMENT,  547 

does  not  deprive  the  defendant  of  the  right  to  a  deter- 
mination of  the  issues  as  to  the  attachment  thereafter.^ 

In  some  of  the  states  it  is  provided  by  statute  that  a 
motion  to  set  aside  an  attachment  must  be  made  within  a 
certain  time;  for  example,  before  the  expiration  of  the  time 
to  answer.  If  so  the  motion  must  be  made  within  the  time 
or  it  is  Avaived.^  Proceedings  in  attachment  can  not  be- 
attacked,  collaterally,  for  mere  irregularities.^ 

11.  Presumptions  in  favor  of  jurisdiction. — There  are  au- 
thorities holding  that  attachment  proceedings  are  special, 
that  the  jurisdiction  of  the  court  must  therefore  appear 
affirmatively,  and  that  no  presumptions  in  favor  of  such 
jurisdiction  can  be  indulged.*  But  the  clear  weight  of 
authority  and  reason  is  to  the  contrary,  the  better  rule  be- 
ing that  in  the  absence  of  any  showing  in  the  record  to  the 
contrary,  it  will  be  presumed  that  the  steps  necessary  to  vest 
the  court  with  jurisdiction  were  taken  and  that  the  court 
had  authority  to  act.' 

75.  Garnishment. — The  principles  affecting  jurisdiction 
in  garnishment  proceedings  are  very  similar  to  those  ap- 
plicable to  proceedings  in  attachment,  which  have  been 
treated  of  in  the  last  preceding  section,  and  the  objects  of 
the  two  are  very  similar.  The  attachment  is  to  seize  and 
hold  the  property  of  the  defendant,  subject  to  execution, 
for  the  satisfaction  of  the  plaintiff's  judgment  when  re- 
covered.^ The  object  of  the  garnishment  proceeding  is  to 
compel  one  indebted  to  the  defendant,  or  having  property 
of  his,  to  withhold  the  same  and  pay  it  into  court  or  de- 
liver it  to  the  proper  officer  to  be  applied  to  the  satisfac- 
tion of  the  judgment  when  recovered.^ 

The  most  material   distinction  between  the  two,  as  re- 

'  Ray  V.  Gore,  41  N.  W.  Rep.  329 ;  Calvert  Lith.  Co.  v.  K.  &   K.  Medi- 
cal Ass'n,  61  Mich.  336;  28  N.  W.  Rep.  111. 
-  Vaughn  v.  Dawes,  7  Mont.  360;  17  Pac.  Rep.  114. 
'  Morey  ?•.  Hoyt,  62  Conn.  542;  26  Atl.  Rep.  127. 

*  Oberfelder  v.  Kavanaugh,  32  N.  W.  Rep.  295. 

*  Ante,  sec.  25;  Veatch  v.  Chenoweth,  46  Kan.  743;  30  Pac.  Rep.  113; 
Beebee  r.  Morrell,  76  Mich.  114;  42  N.  W.  Rep.  1119. 

®  Ante,  sec.  74.  '  Benton  v.  Snyder,  22  Minn.  247. 


548      COMMON  LAW,  EQUITY,  AND  STATUTOKY  JURISDICTION. 

spects  the  subject  of  jurisdiction,  is  that  in  the  former  a 
seizure  of  the  property  is  authorized,  and  is  sometimes  ab- 
solutely necessary  to  give  the  court  jurisdiction,^  while  in 
the  latter  the  seizure  of  the  property  is  neither  necessary 
nor  authorized.^ 

The  garnishment  proceeding  is  like  the  attachment  in 
that  it  is  ancillary  to  the  main  action,^  that  notice  to  the 
defendant  is  uecesary  to  uphold  it,*  and  that  a  valid  judg- 
ment in  the  main  action,  authorizing  the  application 
of  the  property  in  the  hands  of  the  garnishee  to  the  sat- 
isfaction of  the  plaintiff's  claim  must  be  recovered;^  but 
not  necessarily  a  personal  judgment  against  the  defend- 
ant. The  only  jurisdiction  obtained  by  the  court,  where 
the  defendant  is  a  non-resident,  may  rest  entirely  upon  the 
proceeding  in  garnishment,  and  constructive  notice,  which 
will  not  authorize  a  personal  judgment,  but  only  the  dis- 
position of  the  property  or  fund  in  the  hands  of  the  gar- 
nishee.^ In  such  case  the  proceeding  is  essentially  one  iii 
rem?  And  in  some  of  the  states,  the  validity  of  the  gar- 
nishee proceeding  depends  upon  a  valid  proceeding  in  at- 
tachment under  some  circumstances.* 

A  real  contest  may  arise  between  the  plaintiff  and  the 
garnishee  as  to  the  indebtedness  of  the  latter  to  the  de- 
fendant, or  as  to  the  ownership  of  the  defendant  of  the 
property  sought,  inhishands,to  be  applied  to  the  plaintiff's 

^  Ante,  sec.  74.  ^  Wade  Attach.,  sec.  325. 

MVade  Attach.,  sec.  399;  Benton  v.  Snyder,  22  Minn.  247;  Frisk  v. 
Reigelman,  75  Wis.  499;  43  N.  W.  Rep.  1117;  Streissguth  v.  Reigehnan, 
75  Wis.  212;  43  N.  W.  Rep.  1116. 

*  Wade  Attach.,  sec.  399  ;  Newman  v.  Manning,  89  Ind.  422;  Martin  v. 
Central  Vermont  R.  Co.,  3  N.  Y.  Supl.  82;  Beaupre  v.  Keefe,  79  Wis. 
446;  48  N.  W.  Rep.  596;  Debbs  v.  Dalton,  34  N.  E.  Rep.  236. 

*  Wade  Attach.,  sec.  399;  Waples  Attach.  345;  Wilder  ?•.  Weather- 
head,  32  Vt.  765;  Melloy  v.  Burtis,  124  Pa.  St.  161;  16  Atl.  Rep.  747; 
Frisk  V.  Reigelman,  75  Wis.  499;  43  N.  W.  Rep.  1117;  Streissguth  v. 
Reigelman,  75  Wis.  212;  43  N.  W.  Rep.  1116;  Debbs  v.  Dalton,  34  N.  E. 
Rep.  236. 

^  Waples  Attach.  345.  '  Ante,  sec.  74 ;  Waples  Attach.  345. 

8  Streissguth  v.  Reigelman,  75  Wis.  212;  43  N.  W.  Rep.  1116;  Scur- 
lock  /•.  Gulf  C.  &  S.  F.  Ry.  Co.,  77  Tex.  478;  14  S.  W.  Rep.  148;  Donald 
V.  Nelson,  10  Sou.  Rep.  317. 


GARNISHMENT.  549 

claim.  And  as  to  these  questions,  the  controversy  assumes 
the  form  of  an  independent  suit,  and  is  so  treated  for  cer- 
tain purposes.^  But  for  all  that,  the  action  against  the  de- 
fendant and  the  recovery  of  a  judgment  against  him,  or 
for  the  application  of  the  property,  are  necessary  to  ujt- 
hold  the  proceeding  in  garnishment,  or  any  decree  that 
may  he  rendered  against  him.  The  proceeding  is  entireljs- 
statutory.^ 

Usually  an  affidavit  in  addition  to  the  affidavit  for  at- 
tachment is  required.  The  statutes  of  the  different  states 
differ  as  to  what  these  affidavits  shall  contain.  ,The  stat- 
ute must  be  complied  with.^ 

It  will  be  unnecessary  in  this  connection  to  consider  the 
question  as  to  what  will  amount  to  a  sufficient  affidavit. 
What  has  been  said  with  reference  to  the  affidavit  for  at- 
tachment will  suffice  for  the  present  purpose  for  the  reason 
that  the  general  principles  affecting  the  two  are  so  nearly 
the  same  as  to  render  a  separate  discussion  of  them  super- 
fluous. But,  for  convenience  of  reference,  some  of  the  au- 
thorities bearing  upon  the  sufficiency  of  affidavits  for  gar- 
nishment have  been  gathered  in  the  foot  note.* 

The  same  maybe  said  with  reference  to  the  bond  or  un- 
dertaking where  an  additional  bond  is  required  by  the 
statute.  Although,  generally,  the  garnishee  is  not  inter- 
ested in  the  bond,  and  a  failure  to  comply  with  the  statute 
respecting  it  can  not  be  objected  to  by  him  for  the  reason 
that  he  is  usually  a  disinterested  party  to  the  controversy, 
and  does  not  need  the  protection  of  the  bond.^ 

'  "Wade  Attach.,  sec.  332;  Middleton  Paper  Co.  v.  Rock  River  Paper 
Co.,  19  Fed.  Rep.  252. 

*  Wade  Attach.,  sec.  333. 

MVade  Attach.,  sec.  356;  Steen  v.  Norton,  45  Wis.  412;  Wells  r. 
American  Ex.  Co.,  55  Wis.  23;  11  N.  W.  Rep.  537. 

MVade  Attach.,  sec.  356;  Steen  v.  Norton,  45  Wis.  412;  Wells  v. 
American  Ex.  Co.,  55  Wis.  23;  11  N.  W.  Rep.  537;  Ettelsohn  r.  Fireman's 
Fund  Ins.  Co.,  31  N.  W.  Rep.  201 ;  Scurlock  r.  Gulf  C.  &  S.  F.  Ry.  Co., 
77  Tex.  478;  14  S.  W.  Rep.  148;  Connor  v.  Third  National  Bank.  90 
Mich.  328;  51  N.  W.  Rep.  523;  Orton  v.  Noonan,  27  Wis.  572;  Everdell 
V.  The  Sheboygan,  etc.,  R.  Co.,  41  Wis.  395 ;  Davis  r.  Wilson,  3  N.  W. 
Rep.  52 ;  Prince  r.  Heenan,  5  Minn.  347. 

^  Wade  Attach.,  sec.  356. 


550     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

As  to  the  necessity  for  such  notice  to  the  defendant,  in  the 
main  action,  as  will  give  the  court  jurisdiction,  and  thereby 
uphold  the  auxiliary  proceeding  in  garnishment,  the  rules 
and  principles  are  the  same  as  in  attachment.^  And  in  lieu 
of  the  seizure  of  the  property  in  attachment,  notice  in  the 
form  provided  by  statute  must  be  given  to  the  garnishee.^ 
This  notice  is  in  the  nature  of  an  actual  levy  upon  the 
property,  in  that  the  garnishee  is  bound,  upon  receiving  it, 
to  hold  the  property,  or  the  amount  due  from  him  to  the 
defendant,  subject  to  any  judgment  that  the  plaintiff  may 
recover  in  the  main  action.^ 

From  the  time  notice  is  given  to  the  garnishee  the 
property  or  chose  in  action  is  in  the  custody  of  the  law, 
the  same,  in  legal  effect,  as  if  an  actual  levy  had  been 
made  thereon.  The  notice  given  to  the  garnishee  may 
also  be  in  the  form  of  a  summons  to  him  to  appear  and 
answer  as  to  the  garnishment  proceeding.  As  to  the 
form  and  sufficiency  of  the  notice,  see  the  authorities 
cited  below.*  Also  as  to  the  time  and  manner  of  its 
service.^ 

The  doctrine  of  waiver  of  notice  on  the  part  of  the  gar- 
nishee differs  from  the  rule  on  the  subject  in  attachment  pro- 
ceedings, growing  out  of  the  fact  that  the  garnishee  is  not, 
as  a  rule,  a  real  party  in  interest  who  can  waive  the  notice. 

1  Ante,  sec.  74.  '  Padden  v.  Moore,  58  la.  703 ;  12  N.  W.  Rep.  724. 

5  Waples  Attach.  341 ;  Wilder  v.  Weatherhead,  32  Vt.  765 ;  Beamer 
V.  Winter,  41  Kan.  596 ;  21  Pac.  Rep.  1078. 

*  Wade  Attach.,  sec.  357;  Padden  v.  Moore,  58  la.  703;  12  N.  W.  Rep. 
724;  Mathews  t'.  Smith,  13  Neb.  178;  12  N.  W.  Rep.  821;  Bell  v.  Wood, 
87  Ky.  56;  7  S.  W.  Rep.  550;  Warner  v.  Fourth  Nat'l  Bank,  115  N.  Y. 
251 ;  22  N.  E.  Rep.  172 ;  Mangold  v.  Dooley,  89  Mo.  Ill ;  1  S.  W.  Rep. 
126;  Acme  Lumber  Co.  v.  Francis  Vandergrift  Shoe  Co.,  11  Sou.  Rep. 
657;  Middleton  Paper  Co.  v.  Rock  River  Paper  Co.,  19  Fed.  Rep.  252. 

=  Wade  Attach.,  sees.  359,  360;  Gates  v.  Tusten,  89  Mo.  13;  14  S.  W. 
Rep.  827;  Hayden  v.  National  Bank,  29  N.  E.  Rep.  143;  First  Nat'l  Bank 
V.  Leppel,  9  Colo.  594;  13  Pac.  Rep.  776;  Nelson  v.  Sanborn,  64  N.  H.  310; 
9  Atl.  Rep.  721 ;  Harrell  v.  Mexico  Cattle  Co.,  73  Tex.  612;  11  S.W.  Rep. 
863;  Tweedy  v.  Bogart,  56  Conn.  419;  15  Atl.  Rep.  374;  Fuller  v.  Foote, 
56  Conn.  341;  15  Atl.  Rep.  760;  Case  v.  Noys,  16  Ore.  539;  21  Pac.  Rep. 
46;  Axman  v.  Dueker,  45  Kan.  179;  26  Pac.  Rep.  946 ;  Gow  v.  Marshall^, 
90  Cal.  565 ;  27  Pac.  Rep.  422. 


i 


GARNISHMENT.  551 

Therefore,  unless  expressly  authorized  to  do  so  by  statute, 
he  can  not  waive  notice  or  acknowledge  service  of  the 
same.'  Nor  can  he  waive  the  making  of  the  affidavit  re- 
quired by  the  statute.^  But  he  may  waive  defects  in  the 
proceedings  affecting  himself  alone  and  not  going  to  the 
jurisdiction  of  the  court.^  The  defendant  may  waive 
notice  or  defects  therein  affecting  jurisdiction  over  his 
person,  thereby  making  a  jurisdictional  foundation  for  the 
garnishee  proceeding.* 

There  is  nothing  peculiar  about  the  proof  of  service  of 
process  in  garnishee  proceedings  that  calls  for  any  especial 
consideration.  The  proof  must,  as  in  other  cases,  show 
that  service  has  been  made  as  required  by  the  statute.* 

With  reference  to  the  jurisdiction  as  to  amount,  it  is 
usually  held  that  the  amount  claimed  by  the  plaintiff  in  the 
main  action  controls,  and  not  the  value  of  the  property  in 
the  hands  of  the  garnishee  or  the  amount  claimed  to  be  due 
from  him  to  the  defendant.^  But  in  some  of  the  states  a 
different  rule  prevails.  The  garnishment  proceeding  is 
treated  as  an  independent  action,  in  this  respect,  between 
the  plaintiff  and  the  garnishee,  and  the  amount  claimed  to 
be  in  the  hands  of  the  garnishee  is  held  to  control.^ 

As  to  the  question  of  territorial  jurisdiction,  the  pro- 
ceeding must  necessarily  be  brought  in  the  court  having 
jurisdiction  of  the  place  where  the  property  is  situate  or 
the  garnishee,  who  is  alleged  to  be  indebted  to  the  defend- 
ant, resides.''    But  provision  may  be  made  for  garnishment 

'  Wade  Attach.,  sec.  361 ;  Ettelsohn  v.  Fireman's  Fund  Ins.  Co.,  64 
:\lich.  :!31 ;  31  N.  W.  Rep.  201  ;  Rindge  v.  Green,  52  Vt.  204;  McCormick 
Harvesting,  etc.,  Co.  v.  James,  54  N.  W.  Rep.  1088;  Nelson  v.  Sanborn, 
G4  N.  H.  310;  9  Atl.  Rep.  721. 

^  Steen  v.  Norton,  45  Wis.  412;  Wells  v.  American  Ex.  Co.,  55  Wis. 
23;  11  N.  W.  Rep.  537  ;  Ettelsohn  v.  Fireman's  Fund  Ins.  Co  ,  31  N.  E. 
Rep.  201. 

»  Wade  Attach.,  sec.  386 ;  Stevens  v.  Dillman,  86  111.  233. 

*  Wade  Attach.,  sec.  362.  *  Wade  Attach.,  sec.  363. 

*  Wade  Attach.,  sec.  391. 

'  Wade  Attach.,  sec.  391;  Becknell  r.  Becknell,  110  Ind.  42;  10  N.  E. 
Rep.  414;  Bowen  v.  Pope,  125  111.  28;  17  N.  E.  Rep.  64;  Berry  v.  Davis, 
77  Tex.  191;  13  S.  W.  Rep.  978;  Harvey  v.  Great  Northern  Ry.  Co.,  52 


552       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

proceedings  against  foreign  corporations  doing  business 
within  the  state  and  having  property  of  the  defendant  in 
their  possession  within  the  jurisdiction.^ 

The  most  satisfactory  rule  with  reference  to  proceed- 
ings against  a  debtor  of  the  defendant  is  that  they  may 
be  maintained  wherever  the  defendant  might  sue  for 
the  debt,  provided  the  law  of  the  forum  authorizes  the 
proceeding.^  And  this  would  seem  to  authorize  the  pro- 
ceeding against  a  foreign  corporation  wherever  it  could, 
by  the  law  of  the  state  where  it  is  doing  business,  be  sued 
and  served.     But  it  has  been  ruled  differently.^ 

A  non-resident  garnishee  can  not  be  reached  by  con- 
structive service,  or  otherwise,  so  long  as  he  remains  out 
of  the  state.*  The  non-residence  of  the  plaintiff,  or  of  the 
defendant,  or  the  fact  that  the  debt  was  contracted  out  of 
the  state,  will  not  deprive  the  court  of  jurisdiction  if  prop- 
erty in  the  hands  of  the  garnishee  is  found.^ 

In  order  to  authorize  the  proceeding,  there  must  be 
property  within  the  jurisdiction  of  the  court  which  is 
subject  to  execution,  and  in  some  of  the  states  this  must 
be  shown  by  the  affidavit.^  Therefore,  if  the  property 
levied  upon  in  the  hands  of  the  garnishee  is  exempt  from 
execution,  or  not  subject  thereto  for  any  other  reason,  the 
jurisdiction  of  the  court,  based  alone  upon  the  presence 
of  such  property,  must  fail.' 

It  would  be  beyond  the  scope  of  this  work  to  undertake 
to  ascertain   what  property  is  subject  to  execution  and 

N.  W.  Rep.  905 ;  Lewis  v.  Lawrence,  15  N.  W.  Rep.  113 ;  Rindge  v.  Green, 
52  Vt.  204 ;  Searing  v.  Benton,  41  Kan.  758 ;  21  Pac.  Rep.  800. 

1  Cousens  v.  Lovejoy,  81  Me.  467 ;  17  Atl.  Rep.  495. 

2  Harvey  v.  Great  Northern  Ry.  Co.,  52  N.  W.  Rep.  905 ;  Blake  v.  Will- 
iams, 6  Pick.  285. 

3  Milwaukee,  etc..  Works  v.  Brevoort,  73  Mich.  155 ;  41  N.  W.  Rep.  215. 
*  Wade  Attach.,  sec.  391 ;  Cousens  v.  Lovejoy,  17  Atl.  Rep.  495. 

^  Nichols  i!.  Hooper,  61  Vt.  295;  17  Atl.  Rep.  134;  Berry  v.  Davis,  77 
Tex.  191;  13  S.  W.  Rep.  978;  Harvey  v.  Great  Northern  Ry.  Co.,  52  N. 
W.  Rep.  905. 

6  Steen  v.  Norton,  45  Wis.  412. 

'  Terre  Haute  &  I.  R.  Co.  v.  Baker,  123  Ind.  15 ;  24  N.  E.  Rep.  83 ;  No- 
ble V.  The  Thompson  Oil  Co.,  79  Pa.  St.  354;  21  Am.  Rep.  66. 


I 


I 


GARNISHMENT.  553 

which  would  be  the  foundation  of  jurisdiction  in  garnish- 
ment. The  laws  of  the  dilferent  states  are  not  uniform 
on  the  subject,  and  a  discussion  of  the  question  here  would 
serve  no  useful  purpose.  The  right  of  the  plaintiff"  to 
maintain  garnishment  proceedings  depends,  in  part,  upon 
the  question  whether  the  defendant  could  himself  maintain 
an  action  against  the  garnishee  for  the  property  or  indebt- 
edness sought  to  be  reached.  The  general  rule  on  the 
subject  is,  that  a  garnishment  proceeding  can  be  main- 
tained only  for  such  a  debt  or  liability  as  the  principal 
debtor  could  himself  enforce  by  an  action  at  law.^ 

While  the  garnishee  is  in  many  respects  a  disinterested 
party,  he  is  nevertheless  interested  in  the  question  of 
jurisdiction  of  the  subject-matter  and  of  the  person  of 
the  defendant  in  the  main  action,  for  the  reason  that,  in 
order  to  protect  him  from  a  subsequent  claim  against  him 
by  the  defendant,  or  others,  for  the  property  held  by  him, 
he  must  see  that  the  court  has  such  jurisdiction  as  will 
render  the  judgment  recovered,  and  upon  which  he  is  re- 
quired to  surrender  the  property,  valid  and  binding,  not 
only  upon  him,  but  upon  the  defendant  as  w^ell."  But  he 
can  not  be  heard  to  question  the  judgment  in  the  main 
action  for  mere  errors  or  irregularities  not  affecting  the 
jurisdiction  of  the  court.^ 

In  some  of  the  states,  provision  is  made  for  garnishment 
in  aid  of  execution,  but  the  proceeding  thus  provided  for 
needs  no  special  consideration  in  this  connection.  The 
proceeding  is  sometimes  denominated  "  trustee  process," 
or  "  factorizing  process,"  but  it  is  the  same  thing  by  a 
different  name. 

'  Hoyt  V.  Swift,  13  Vt.  129 ;  Searing  v.  Benton,  41  Kan.  758 ;  21  Pac. 
Rep.  800. 

'  Wade  Attach.,  sec.  399;  Melloy  v.  Burtis,  124  Pa.  St.  161,  16  Atl. 
Hep.  747;  Streissguth  v.  Reigelman,  75  Wis.  212;  43  N.  W.  Rep.  1116; 
Frisk  V.  Reigelman,  75  Wis.  499;  43  N.  W.  Rep.  1117;  Beaupre  v.  Keefe, 
79  Wis.  436;  48  N.  W.  Rep.  596;  Dennison  v.  Taylor,  31  N.  E.  Rep.  148; 
Louisville  N.  A.  &  C.  Ry.  Co.  v.  Lake,  32  N.  E.  Rep.  590. 

»  Henny  Buggy  Co.  v.  Patt,  73  la.  485 ;  35  N.  W.  Rep.  587. 


554       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

76.  Sales  of  real  estate.  Questions  bearing  upon  the 
subject  of  this  section  have  been  considered  in  earlier  sec- 
tions of  this  work.^  Such  questions  arise  most  frequently 
in  cases  of  sales  made  by  executors,  administrators,  and 
guardians.  The  general  principles  affecting  proceedings 
of  this  character  have  received  attention  somewhat  more 
particularly  in  the  section  on  probate  jurisdiction.^ 

But  it  has  been  thought  best  to  consider  the  subject 
more  fully  and  minutely,  in  this  connection.  Much  con- 
fusion will  be  found  in  the  decided  cases  upon  many  of  the 
questions  of  jurisdiction  in  case  of  sales  of  real  estate. 
And  in  the  main  these  differences  are  wholly  irreconcila- 
ble. They  result  very  largely  from  two  causes,  viz.,  differ- 
ences in  the  statutes  of  the  several  states,  and  the  disa- 
greement of  the  courts  of  the  different  states  as  to  the 
grade  of  the  courts  exercising  the  jurisdiction,  whether 
courts  of  general  or  of  special  jurisdiction,  when  acting 
in  proceedings  of  this  character.  In  the  earlier  cases  the 
great  weight  of  authority  was  undoubtedly  to  the  effect 
that  whatever  might  be  the  grade  of  the  court,  in  general, 
it  was,  when  exercising  powers  of  this  kind,  a  court  of 
special  jurisdiction.^  And  that,  therefore,  the  jurisdic- 
tion, or  the  facts  necessary  to  establish  the  jurisdiction, 
could  not  be  presumed,  but  must  affirmatively  appear  on 
the  face  of  the  record.*  And  there  are  late  cases  to  the 
same  effect.^ 

In  many  of  the  states  this  has  been  changed  by  express 
statutory  provisions.  In  others  the  courts  have  repudi- 
ated the  doctrine,  and  hold  that  such  proceedings  are  not 
special,  in  the  sense  that  no  presumptions  can  be  indulged 

1  Ante,  sees.  6,  7,  23,  25.  '  Ante,  sec.  67. 

3  Root  V.  McFerrin,  37  Miss.  17 ;  75  Am.  Dec.  49,  61  note ;  Wyatt  v. 
Rambo,  29  Ala.  510 ;  68  Am.  Dec.  89;  Tucker  v.  Harris,  13  Ga.  1  ;  58  Am. 
Dec.  488. 

*  Wyatt  V.  Rambo,  29  Ala.  510;  68  Am.  Dec.  89;  Gelstrop  v.  Moore,  26 
Miss.  206;  59  Am.  Dec.  254;  Martin  v.  Williams,  42  Miss.  210;  97  Am. 
Dec.  456;  Goforth  v.  Longworth,  4  Ohio,  129  ;  19  Am.  Dec.  588. 

^Elwood  V.  Northrop,  106  N.  Y.  172;  12  N.  E.  Rep.  590;  Matter  of 
Valentine,  72  N.  Y.  184;  Wilson  v.  Holt,  83  Ala.  528;  3  Sou.  Rep.  321; 
Sloan  V.  Sloan,  25  Fla.  53;  5  Sou.  Rep.  603. 


1 


SALES  OF  REAL  ESTATE.  555 

in  favor  of  the  jurisdiction  of  the  court  in  such  cases. 
And  the  weight  of  the  modern  authorities  is  in  favor  of 
upholding  proceedings  of  this  kind  hy  executors,  adminis- 
trators, and  guardians  as  the  exercise,  by  the  courts,  of 
general  jurisdiction  to  be  upheld  by  all  the  presumptions 
applicable  to  such  jurisdiction.^ 

It  is  held,  generally,  that  "  where  a  probate  court  pos- 
sesses general  jurisdiction  of  a  given  class  of  subject- 
matters,  the  possession  of  jurisdiction  assumed  to  be  exer- 
cised in  a  particular  case  falling  within  that  class  is,  in 
collateral  proceedings,  presumed,"  and  that  the  presump- 
tion can  only  be  rebutted  by  the  record.^ 

But  it  is  held  that  where  a  deed,  purporting  to  be  exe- 
cuted by  one  as  guardian,  is  offered  in  evidence  it  must  be 
shown  that  he  was  duly  appointed  such  guardian  by  a 
court  of  competent  jurisdiction,  and  had  authority  from 
the  court  to  make  the  conveyance ;  and  that  the  existence 
of  such  authority  will  not  be  presumed  even  after  the 
lapse  of  many  years.^ 

It  is  held  in  some  of  the  cases  that  the  facts  necessary 
to  show  jurisdiction  need  not  appear  from  the  record,  but 
may  be  shown  aliunde} 

The  jurisdiction  to  order  the  sale  of  real  estate  depends 

^  Ante,  sees.  6,  7,  23,  25,  67 ;  Schultz  v.  Schultz,  10  Grattan,  358  ;  60  Am. 
Dec.  335,  353;  Schnell  v.  City  of  Chicago,  38  111.  382;  87  Am.  Dec.  304; 
Torrance  v.  Torrance,  53  Pa.  St.  505  ;  Appeal  of  Hilton,  9  Atl.  Rep.  434; 
Klingensmith  v.  Bean,  2  Watts  (Penn.)  486;  27  Am.  Dec.  328;  McPher- 
son  V.  Cunliff,  11  Serg.  &  Rawle,  422 ;  14  Am.  Dec.  642  ;  Davis  v.  Hudson, 
29  Minn.  27  ;  11  N.  W.  Pep.  136 ;  Camden  v.  Plain,  91  Mo.  117 ;  4  S.  W. 
Rep.  86;  Rowden  v.  Brown,  91  Mo.  429 ;  4  S.  W.  Rep.  129;  ]Martin  v.  Robin- 
son, 67  Tex.  368;  3  S.  W.  Rep.  550  ;  Kelley  r.  Morrell,  29  Fed.  Rep.  736  ; 
Moffitt  V.  Moffitt,  69  111.  641 ;  Johnson  v.  McDyer,  9  S.  W.  Rep.  778 ; 
McMillan  v.  Reeves,  102  N.  Car.  550 ;  9  S.  E.  Rep.  449 ;  :\hirphy  v.  De 
France,  105  Mo.  53;  15  S.  AV.  Rep.  949;  Lyne  v.  Sanford,  82  Tex.  58 ; 
19  S.  W.  Rep.  847;  Harris  v.  Shafer,  21  S.  W.  Rep.  110;  Macey  v.  Stark, 
21  S.  W.  Rep.  1088 ;  Withers  v.  Patterson,  27  Tex.  491 ;  86  Am.  Dec. 
643;  May  v.  County  of  Logan,  30  Fed.  Rep.  250;  Simmons  v.  Saul,  138 
U.  S.  439 ;  11  Sup.  Ct.  Rep.  369 ;  Shroyer  v.  Richmond,  16  Ohio  St.  455. 

'  Davis  V.  Hudson,  29  Minn.  27 ;  11  N.  W.  Rep.  136  ;  Menage  v.  Jones, 
40  Minn.  254;  41  N.  W.  Rep.  972. 

'  House  V.  Brent,  69  Tex.  27 ;  7  S.  W.  Rep.  65. 

*  Van  Deusen  v.  Sweet,  51  N.  Y.  378. 


656       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

Upon  the  general  power  of  the  court  to  exercise  such  ju- 
risdiction, upon  its  having  acquired  jurisdiction  of  the  ad- 
ministration of  the  estate,  generally,  and  upon  its  having, 
by  the  commencement  of  appropriate  proceedings,  by  pe- 
tition or  otherwise,  acquired  jurisdiction  of  the  particular 
property  to  be  dealt  with.'  ^ 

It  is  held  in  some  of  the  cases,  however,  that  the  ques- 
tion whether  the  executor,  administrator,  or  guardian  was 
legally  appointed  or  not  can  not  be  raised,  collaterally,  as 
against  an  order  or  decree  for  the  sale  of  real  estate  made 
by  a  competent  court.^ 

It  will  be  found  by  a  reference  to  these  cases  that  some 
of  them  turn  upon  the  language  of  some  statute  which 
specifies,  and  therefore  limits,  the  grounds  upon  which 
sales  may  be  attacked  collaterally.  But  in  others  the  con- 
clusion reached  is  placed  upon  the  ground  that,  before  the 
court  can  properly  order  a  sale,  it  must  necessarily  deter- 
mine whether  the  person  applying  for  such  order  is  the 
duly  authorized  guardian,  executor,  or  administrator,  and 
that  such  determination  is  conclusive  on  collateral  attack.^ 
And  the  rule  that  the  question  as  to  the  validity  of  the 
appointment  can  not  be  inquired  into  collaterally  where 
the  court  is  one  having  jurisdiction  of  the  general  subject- 
matter  of  making  such  appointments,  is  sustained  by  the 
weight  of  authority. 

If  it  appears  from  the  record  that  the  court  never  ob- 
tained jurisdiction  to  appoint  the  administrator,  there  can 
be  no  jurisdiction  to  order  the  sale  of  real  estate  by  him.* 

1  Long  V.  Burnett,  13  la.  28 ;  81  Am.  Dec.  420 ;  Bloom  v.  Burdick,  1 
Hill  (N.  Y.),  130;  37  Am.  Dec.  299;  Culver  v.  Hardenbergh,  37  Minn. 
225;  33  N.  W.  Rep.  792;  Paul  v.  Willis,  69  Tex.  261  ;  7  S.  W.  Rep.  357; 
Freeman  Void  Jud.  Sales,  sec.  9. 

2  Walker  v.  Goldsmith,  14  Or.  125 ;  12  Pac.  Rep.  537 ;  Davis  v.  Hud- 
son, 29  ?klinn.  27;  11  N.  W,  Rep.  136;  Clancy  v.  Stephens,  92  Ala.  577; 
9  Sou.  Rep.  522;  Saul  v.  Frame,  22  S.  W.  Rep.  984;  Shroyer  ?;.  Rich- 
mond, 16  Ohio  St.  455. 

=*  Clancy  r.  Stephens,  92  Ala.  577  ;  9  Sou.  Rep.  522  ;  Bostwick  v.  Skin- 
ner, 80  111.  147. 

*  Paul  V.  Willis,  69  Tex.  261 ;  7  S.  W.  Rep.  357 ;  Withers  v.  Patterson, 
27  Tex.  491 ;  86  Am.  Dec.  643. 


SALES  OF  REAL  ESTATE.  557 

But  where  the  record  is  silent  on  the  subject,  it  will  be 
presumed  that  the  court  had  jurisdiction  to  appoint  the 
administrator  and  that  he  was  legally  appointed.* 

If  the  question  goes  to  the  general  power  of  the  court, 
and  is  not  as  to  its  jurisdiction  in  the  particular  estate,  a 
different  rule  must  prevail.  In  such  case,  the  order  of 
sale  would  undoubtedly  be  void  if  such  want  of  power 
were  shown. ^ 

It  is  the  settled  doctrine  of  the  federal  courts  that  the 
jurisdiction  of  the  court  over  the  subject-matter,  and  of 
the  person,  may  be  inquired  into  by  another  court.^ 

The  questions  as  to  what  courts  have  jurisdiction  of 
the  administration  of  estates  and  guardianships,  and  the 
means  by  which  such  jurisdiction  may  be  acquired,  have 
been  sufficiently  covered  in  another  place.* 

It  remains  to  consider  what  is  necessary  to  give  a  court 
jurisdiction  to  sell  real  estate  where  it  has  jurisdiction 
over  the  estate  or  guardianship.  This  usually  depends 
upon  statutory  provisions  authorizing  such  sales.  And 
the  statutes  of  the  several  states  can  not  be  noticed  or 
commented  upon  with  profit  in  a  work  of  this  character. 
We  can  only  deal  with  general  principles  applicable  to 
them  all. 

It  is  not  sufficient  to  show  that  the  court  has  jurisdic- 
tion of  the  estate.  The  application  to  sell  the  real  estate 
is  so  far  a  separate  and  independent  proceeding  that  the 
jurisdiction  to  order  such  sale  must  be  shown,  in  addition 
to  the  showing  of  general  jurisdiction  over  the  estate.^ 

As  has  been  said,  the  jurisdiction  generally  depends 
upon  and  is  limited  by  statute.^  But  this  is  not  universally 
the  case.     The   power  to  order  the  sale  of  real  estate  is 

'  Bostwick  V.  Skinner,  80  111.  147. 

»  Ante,  sec.  67 ;  Withers  v.  Patterson,  27  Tex.  491 ;  86  Am.  Dec.  643. 

^  Simmons  v.  Saul,  138  U.  S.  439;  11  Sup.  Ct.  Rep.  369. 

*  Ante,  sec.  67. 

*  Frazier  r.  Steenwood,  7  la.  339;  71  Am.  Dec.  447  ;  Bloom  )•.  Burdick, 
1  Hill  (N.  Y.),  130 ;  37  Am.  Dec.  299 ;  Moffitt  v.  Moffitt,  69  111.  641. 

*  Wyman  r.  Campbell,  6  Porter  (Ala.),  219  ;  31  Am.  Dec.  677;  Johns 
V.  Tiers,  114  Pa.  St.  611 ;  7  Atl.  Rep.  923;  Whitman  v.  Fisher,  74  111.  147; 
Chamberlain  v.  Chamberlain,  20  Atl.  Rep.  1085. 


558     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

sometimes  held  to  exist  in  courts  of  equity  independent 
of  statute.^  As  a  rule,  however,  a  court  of  equity  has  no 
power  to  order  the  sale  of  real  estate,  so  as  to  afi'ect  the 
legal  title.^  But  a  court  of  equity  has  jurisdiction  to  set 
aside  a  fraudulent  sale  made  by  an  executor,  adminis- 
trator, or  guardian  at  the  instance  of  an  heir  or  of  the 
ward.^  And  a  guardian  has  no  power  to  dispose  of  the 
real  estate  of  his  ward  without  an  order  of  some  court 
having  jurisdiction.* 

In  the  settlement  of  estates  the  usual  ground  and  basis 
of  jurisdiction  to  sell  real  estate  is  the  existence  of  debts 
of  the  estate.  And,  generally,  the  want  or  insufficiency 
of  personal  property  with  which  to  pay  such  debts.^ 
In  the  case  of  guardians,  other  causes  for  making  such 
sales  are  usually  recognized  and  allowed,  including  the  re- 
investment of  the  property  to  better  advantage.^  And 
whatever  the  causes  and  conditions,  they  are  usually  re- 
quired to  be  set  forth  in  a  petition  for  such  sale. 

The  petition  is  the  foundation  of  jurisdiction  and  the 
facts  upon  which  a  sale  is  authorized  are  jurisdictional, 
and  enough  of  them  to  bring  the  case  within  the  statute 
must  be  alleged  in  the  petition  in  order  to  vest  the  court 
with  power  to  order  the  sale.'     But  a  substantial  compli- 

'  Smythe  v.  Henry,  41  Fed.  Eep.  705  ;  Eoche  v.  Waters,  72  Md.  264;  19 
Atl.  Eep.  535;  Shumard  v.  Philips,  53  Ark.  37;  13  S.  W.  Eep.  510;  Thaw 
V.  Falls,  10  Sup.  Ct.  Eep.  1037;  Thaw  v.  Eitchie,  136  U.  S.  519;  Allen  v. 
Shanks,  90  Tenn.  359;  16  S.  W.  Eep.  715. 

^  Whitman  v.  Fisher,  74  111.  147,  154. 

^Hawley  V.  Tesch,  72  Wis.  299;  39  N.  W.  Eep.  483;  Arrowsmith  v. 
Gleason,  129  U.  S.  86;  9  Sup.  Ct.  Eep.  237. 

*  Johns  V.  Tiers,  114  Pa.  St.  611 ;  7  Atl.  Eep.  923 ;  Gumming  v.  Simp- 
son, 1  S.  E.  Eep.  657. 

5  Gregory  v.  McPherson,  13  Cal.  562;  Stuart  v.  Allen,  16  Cal.  473;  7(i 
Am.  Dec.  551 ;  Moffitt  v.  Moffitt,  69  111.  641 ;  Young  v.  Wittenmyre,  123 
111.  203 ;  14  N.  E.  Eep.  869. 

«  Appeal  of  Hilton,  9  Atl.  Eep.  434. 

'  Wilson  •?'.  Armstrong,  42  Ala.  168;  94  Am.  Dec.  635;  Townsend  r. 
Gordon,  19  Cal.  189;  Gregory  r.  McPherson,  13  Cal.  562;  Wyatt  v. 
Eambo,  29  Ala.  510;  68  Am.  Dec.  89;  Long  v.  Burnett,  13  la.  28;  81  Am. 
Dec.  420;  Stevenson  v.  McEeary,  12  Sm.  &  Mar.  (Miss.)  9;  51  Am.  Dec. 
102;  Young  r.  Lorain,  11  111.624;  52  Am.  Dec.  463;  Gregory  f.  Taber, 
19  Cal.  397;  79  Am.  Dec.  219;  Appeal  of  Hilton,  9  Atl.  Eep.  434;  In  re 


SALES  OF  REAL  ESTATE.  559 

ance  with  the  statute  is  all  that  is  necessary.^  And  mere 
defects  or  informalities  in  the  petition,  which  would  render 
it  subject  to  demurrer  or  other  direct  attack,  or  mere  errors 
in  the  proceedings,  however  gross,  will  not  affect  the  juris- 
diction of  the  court  or  render  its  proceedings  void.^ 

If  the  petition  states  enough  to  require  the  court  to  act, 
no  matter  how  defectively  it  may  be  stated,  the  court  has 
jurisdiction,  and  its  proceedings  can  not  be  attacked  col- 
laterally.^ And  if  one  good  cause  for  the  sale  is  stated, 
the  fact  that  another  cause  is  stated,  for  which  a  sale  can 
not  be  authorized,  does  not  affect  the  jurisdiction.* 

It  is  not  the  existence  of  the  facts  that  gives  the  court 
jurisdiction,  but  the  allegation  of  them  in  the  petition. 
Therefore  the  question  whether  the  facts  alleged  are  true 
or  false  does  not  affect  the  jurisdiction  of  the  court.  The 
filing  of  the  requisite  petition  calls  upon  the  court  to  ex- 
ercise its  jurisdiction  by  investigating  and  determining 
whether  the  facts  are  true  or  false.^     But  if  it  appears  af- 

Schlee,  32  N.  W.  Rep.  717 ;  Schlee  v.  Darrow,  65  Mich.  362 ;  Moffitt  v. 
Moffitt,  69  111.  641  ;  Wilson  v.  Holt,  83  Ala.  528  ;  3  Sou.  Rep.  321 ;  Kert- 
chem  V.  George,  78  Cal.  597;  21  Pac.  Rep.  372;  Abernathy  v.  O'Reilly,  90 
Ala.  495;  7  Sou.  Rep.  919;  Needham  v.  Salt  Lake  City,  7  Utah,  319;  26 
Pac.  Rep.  920;  Freeman  Void  Jud.  Sales,  sees.  10,  11,  12. 

^  Stuart  V.  Allen,  16  Cal.  473;  76  Am.  Dec.  .551;  Morrow  v.  Weed,  4  la. 
77 ;  66  Am.  Dec.  122 ;  Moffitt  v.  Moffitt,  69  111.  641 ;  Townsend  v.  Steel, 
85  Ala.  580;  5  Sou.  Rep.  351;  Burris  r.  Adams,  96  Cal.  664;  31  Pac. 
Rep.  565. 

'  Stuart  V.  Allen,  16  Cal.  473;  76  Am.  Dec.  551 ;  Satcher  v.  Satcher,  41 
Ala.  26;  91  Am.  Dec.  498;  Iverson  v.  Loberg,  26  111.  179;  79  Am.  Dec. 
364;  Hobson  v.  Ewan,  62  111.  146;  Goudy  t-.  Hall,  36  111.  313;  87  Am. 
Dec.  217,  222,  note;  Saltonstall  v.  Riley,  28  Ala.  164;  65  Am.  Dec.  334; 
Harris  t.  Lester,  80  111.  307;  Voorhees  v.  Jackson,  10  Pet.  449;  May  r. 
County  of  Logan,  30  Fed.  Rep.  250;  McLawhorn  r.  Worthington,  98  N. 
Car.  199;  3  S.  E.  Rep.  633;  Moffitt  v.  Moffitt,  69  111.  641;  Howbert  v. 
Heyle,  47  Kan.  58;  27  Pac.  Rep.  116. 

'  Hobson  I'.  Ewan,  62  111.  146;  Moffitt  v.  Moffitt,  69  111.  641. 

*  Walker  v.  Goldsmith,  14  Or.  125;  12  Pac.  Rep.  537. 

*  Stuart  V.  Allen,  16  Cal.  473 ;  76  Am.  Dec.  551 ;  Satcher  v.  Satcher,  41 
Ala.  26;  91  Am.  Dec.  498;  Lynch  v.  Baxter,  4  Tex.  431;  51  Am.  Dec.  735; 
Merrill  v.  Harris,  26  N.  H.  142;  57  Am.  Dec.  359;  Young  v.  Lorain,  11 
111.  624;  52  Am.  Dec.  463 ;  Atkins  r.  Kinnan,  20  Wend.  241 ;  32  Am.  Dec. 
534;  Norman  r.  Olney,  64  Mich.  553;  31  X.  W.  Rep.  555;  Curran  v.  Kuby, 
37  Minn.  330:  33  N.  W.  Rep.  907 ;  Camden  v.  Plain,  91  Mo.  117  ;  4  S.  W. 


560      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

firmatively  from  the  record  that  the  required  proof  of  the 
facts  was  not  made,  the  order  to  sell  will  be  void.^ 

And  conceding  that  the  jurisdiction  of  the  court  in  such 
proceedings  is  special  and  limited,  if  it  appears  from  the 
record  that  the  court  ascertained  and  determined  the  juris- 
dictional facts  to  exist,  the  finding  will  be  conclusive  on  a 
collateral  attack."  And  if  there  is  any  evidence  to  sustain 
the  allegation  of  indebtedness,  the  sufficiency  of  such  evi- 
dence is  not  jurisdictional  or  the  finding  of  the  fact  open 
to  collateral  attack.^ 

The  order  of  sale  is  an  adjudication  that  all  the  facts 
necessary  to  give  the  court  jurisdiction  existed.*  But 
where  the  real  estate  goes  to  the  executor  or  adminis- 
trator only  in  case  of  the  existence  of  a  debt  or  debts,  a  sale 
made  where  there  are  no  debts,  or  the  debts  have  been 
barred  by  the  statute  of  limitations,  is  void,  although  the 
existence  of  such  debts  is  alleged  in  the  petition  and  found 
by  the  court,  because,  in  such  case,  the  real  estate  not  hav- 
ing come  within  the  control  of  the  executor  or  adminis- 
trator, or  of  the  court,  there  is  a  want  of  jurisdiction  of 
the  subject-matter.^  And  in  some  of  the  cases  the  finding 
by  the  court  that  debts  exist  is  treated  as  prima  facie  evi- 
dence only  of  the  fact  even  in  case  of  collateral  attack.® 

Rep.  86;  Chardavoyne  v.  Lynch,  82  Ala.  376;  3  Sou.  Rep.  98;  Deans  v. 
Wilcoxon,  25  Fla.  980;  7  Sou.  Rep.  163;  Comstock  v.  Crawford,  3  Wall. 
396 ;  Freeman  Void  Jud.  Sales,  sec.  14. 

1  Thompson  v.  Boswell,  12  Sou.  Rep.  85,  809. 

"  Ante,  sec.  23;  AVyatt  v.  Rambo,  29  Ala.  510;  68  Am.  Dec.  89;  Charda- 
voyne V.  Lynch,  82  Ala.  376;  3  Sou.  Rep.  98;  Norman  v.  OIney,  64  Mich. 
553 ;  31  N.  W.  Rep.  555 ;  McKee  v.  Simpson,  36  Fed.  Rep.  248 ;  Linman 
V.  Riggins,  40  La.  Ann.  761 ;  5  Sou.  Rep.  49;  Marquis  v.  Davis,  113  Ind. 
219;  15  N.  E.  Rep  251 ;  Edwards  v.  Moore,  99  N.  Car.  1 ;  5  S.  E.  Rep.  13j 
Robinson  v.  Epping,  24  Fla.  237;  4  Sou.  Rep.  812  ;  Wing  v.  Dodge,  80  111. 
564;  Simmons  v.  Saul,  138  U.  S.  439;  11  Sup.  Ct.  Rep.  369. 

^  Deans  v.  Wilcoxon,  25  Fla.  980;  7  Sou.  Rep.  163,  172;  Robinson  v. 
Epping,  24  Fla.  237;  4  Sou.  Rep.  812;  Comstock  v.  Crawford,  3  Wall. 
396. 

*  Davis  V.  Gaines,  104  U.  S.  386. 

■■>  Heath  v.  Wells,  5  Pick.  139 ;  16  Am.  Dec.  383  ;  Palmer  v.  Oakley,  2 
Doug,  433;  47  Am.  Dec.  41,  63;  Campan  v.  Gillett,  1  Mich.  416;  53  Am, 
Dec.  73. 

«  Deans  v.  Wilcoxon,  25  Fla.  980  ;  7  Sou.  Rep.  163,  172. 


SALES  OF  REAL  ESTATE.  561 

It  must  be  borne  in  mind,  in  this  connection,  that  in  or- 
der to  make  a  finding  of  jurisdictional  facts  which  will  be 
binding,  the  proceeding  must  be  within  the  general  juris- 
diction of  the  court.  It  is  only  where  the  court  has  gen- 
eral jurisdiction  of  the  settlement  of  estates,  for  example, 
that  such  findings,  which  relate  to  jurisdictional  facts  af- 
fecting the  particular  estate,  can  be  held  to  be  conclusive.^. 

Great  liberality  is  displayed  by  the  courts  in  upholding 
petitions  for  the  sale  of  real  estate  and  all  proceedings  had 
thereunder.^  It  is  the  policy  of  the  law  to  uphold  judicial 
sales.^ 

If  the  record  is  silent,  it  will  be  presumed  that  a  peti- 
tion was  filed  and  that  it  contained  all  of  the  necessary 
jurisdictional  facts.*  So  it  will  be  presumed  that  the 
court  adjudged  every  question  necessary  to  justify  the 
order  or  decree  of  sale  and  that  the  adjudication  was  sus- 
tained by  proof.* 

The  petition  should  show  that  the  proceeding  is  insti- 
tuted in  the  proper  county.^  Sometimes  the  proceeding 
must,  under  the  statute,  be  commenced  where  the  estate  is 
being  administered.^  Sometimes  it  may  or  must  be  com- 
menced and  carried  on  in  the  county  where  the  land  is 
situated.  Sometimes  proceedings  are  necessary  in  both 
the  county  where  the  letters  were  granted  and  the  county 

1  Ante,  sec.  67 ;  Withers  v.  Patterson,  27  Tex.  491 ;  86  Am.  Dec.  643. 

^  Goudy  V.  Hall,  36  111.  313;  87  Am.  Dec.  217;  McLawhorn  v.  Worth- 
ington,  98  N.  Car.  199;  3  S.  E.  Rep.  633;  Moffitt  v.  Moffitt,  69  111.  641; 
Thomson  v  Tolmie,  2  Pet.  157. 

^  Scott  V.  Scott,^85  Ky.  385  ;  5  S.  W.  Rep.  423. 

*  Alexander  v. 'Maverick,  18  Tex.  179;  67  Am.  Dec.  693;  Schnell  v. 
City  of  Chicago,  38  111.  382 ;  87  Am.  Dec.  304 ;  Rowden  v.  Brown,  91 
Mo.  429;  4  S.  W.  Rep.  129;  Schaale  v.  Wasey,  70  Mich.  414;  38  N.  W. 
Rep.  317. 

*  Florentine  v.  Barton,  2  Wall.  210;  Grignon  v.  Astor,  2  How.  319; 
Hobson  V.  Ewan,  62  111.  146. 

"  Loyd  V.  Malone,  23  111.  43;  74  Am.  Dec.  179;  Spencer  v.  Jennings, 
114  Pa.  St.  618;  8  Atl.  Rep.  2. 

'  Spencer  i^  Jennings,  114  Pa.  St.  618;  8  Atl.  Rep.  2;  Apel  v.  Kelsey, 
47  Ark.  413 ;  2  S.  W.  Rep.  102 ;  Stack  v.  Royce,  34  Neb.  833 ;  52  N.  W. 
Rep.  675. 

36 


562      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

in  wliich  the  real  estate  is  situated,'  and  sometimes,  where 
the  proceeding  is  by  a  guardian,  it  must  be  instituted  in 
the  county  where  the  ward  resides,  although  the  estate 
may  be  in  another  county.^ 

In  some  of  the  states,  jurisdiction  to  order  a  sale  is  held 
to  be  concurrent  in  the  court  of  the  county  where  the  land 
is  situated  and  in  the  court  where  the  letters  of  adminis- 
tration were  granted.^ 

The  proceedings  must,  in  order  to  pass  the  title,  con- 
form to  the  laws  of  the  state  in  which  the  real  estate  is 
situate/  But  it  is  not  necessary  that  either  the  ward  or 
the  guardian,  or  the  executor  or  administrator,  be  resi- 
dents of  the  state.  Provision  is  usually  made  by  statute 
for  ancillary  or  auxiliary  proceedings  in  the  state  and 
county  where  the  land  is  situated  by  a  foreign  guardian, 
executor,  or  administrator.* 

So  the  court  usually  has  the  power  to  appoint  a  guar- 
dian for  a  non-resident,  with  authority  to  deal  with  the 
property  of  such  non-resident  within  the  jurisdiction  of 
the  court.^  But  an  order  made  by  a  court  for  the  sale  of 
real  estate  situate  in  another  state  is  void.^ 

A   court   acting   in  personam,    may  compel   the   owner 
of  land  over  whose  person  it  has  obtained  jurisdiction  h 
convey  real  estate  situate  in  another  state.*     But  neither 
decree  for  such  conveyance,  nor  a  conveyance   under  it 
except  by  the  person  in  whom  the  title  is  vested,  can  op-| 
erate  beyond  the  jurisdiction  of  the  court.^ 

While  the  rule  is  well   established  that  a  substantial 

»  Hopkins  v.  Meir,  19  Atl.  Rep.  264. 

2  Loyd  V.  Malone,  23  111.  43 ;  74  Am.  Dec.  179. 
^  Jones  V.  Levi,  72  Ind.  586 ;  Williamson  v.  Miles,  25  Ind.  55. 

*  Menage  v.  Jones,  40  Minn.  254  ;  41  N.  W.  Rep.  972  ;  Watkins  v.  Hol- 
man,  16  Pet.  25,  56. 

^  Menage  v.  Jones,  40  Minn.  254  ;  41  N.  W.  Rep.  972 ;  Hoyt  v.  Sprague^ 
103  U.  S.  613. 

*  Davis  V.  Hudson,  29  Minn.  27 ;  11  N.  W.  Rep.  136;  Hoyt  v.  Sprague^ 
103  U.  S.  613. 

'  Musson  V.  Fall  Back,  etc.,  Co.,  12  Sou.  Rep.  587;  Watkins  i^.  Holman^ 
16  Pet.  25. 

*  Ante,  sec.  15  ;  Watkins  v.  Holman,  16  Pet.  25. 

3  Watkins  v.  Holman,  16  Pet.  25. 


I 


SALES  OF  REAL  ESTATE.  563 

compliance  with  the  requirements  of  the  statute  is  suffi- 
cient to  give  the  court  jurisdiction,  there  are  cases  which 
hold  a  strict  compliance  to  he  necessary.^ 

The  property  sought  to  be  sold  must  be  sufficiently  de- 
scribed in  the  proceedings.- 

In  order  to  make  the  jurisdiction  acquired  by  the  filing 
of  a  proper  petition  effective,  and  uphold  a  sale  made 
under  the  order,  such  notice  of  the  application  and  the 
time  and  place  of  the  hearing  as  the  law  requires  must  be 
given.^  A  proper  petition  gives  the  court  jurisdiction  of 
the  subject-matter  and  the  notice  gives  jurisdiction  of  the 
person.* 

If  the  court  has  obtained  jurisdiction  by  the  proper  pe- 
tition and  notice,  the  title  of  a  purchaser  at  the  sale  will 
be  protected,  no  matter  what  errors  may  intervene.*  And 
as  the  petition  gives  jurisdiction  of  the  subject-matter,  the 
order  or  decree  of  sale  will  be  binding  upon  such  of  the 
parties  interested  as  have  been  notified,  although  not  bind- 
ing upon  others  not  notified.^  But  it  is  held  in  some  of 
the  cases  that  in  case  of  a  sale  by  a  guardian  no  notice  to 
the  ward  is  necessary  unless  expressly  required  by  statute  ; 
that  the  guardian  represents  the  ward  and  no  notice  is  re- 
quired by  any  general  rule  of  law.^ 

This  is  the  established   rule  in  the  federal  courts,  but  a 

'  Gelstrop  v.  Moore,  26  Miss.  206 ;  59  Am.  Dec.  254  ;  Stevenson  r.  Mc- 
Eeary,  12  Sm.  &  Mar.  (Miss.)  9  ;  51  Am.  Dec.  102  ;  Battell  v.  Forrey,  65 
N.  Y.  294;  Matter  of  Valentine,  72  N.  Y.  184;  Stillwell  v.  Swarthout,  81 
N.  Y.  109 ;  Elwood  r.  Northrop,  106  N.  Y.  172 ;  12  N.  E.  Eep.  590. 

*  Frazier  v.  Steenwood,  7  la.  339;  71  Am.  Dec.  447. 

=*  Gibson  v.  Roll,  30  111.  172;  83  Am.  Dec.  181;  Root  v.  McFerrin,  37 
Miss.  17;  75  Am.  Dec.  49;  Clark  v.  Thompson,  47  111.  25;  95  Am.  Dec. 
457;  Gibbs  r.  Shaw,  17  Wis.  197;  84  Am.  Dec.  737;  Beckett  r.  Selover, 
7  Cal.  215 ;  68  Am.  Dec.  237 ;  Moffitt  v.  Moffitt,  69  111.  641 ;  Menifee  v. 
Marge,  4  S.  E.  Rep.  726;  Chicago,  K.  &  N.  Ry.  Co.  r.  Cook,  43  Kan.  83 ;  22 
Pac.  Rep.  988;  Harrison  v.  Harrison,  106  X.  Car.  282;  11  S.  E.  Rep.  356; 
Martin  v.  Neal,  125  Ind.  547;  25  N.  E.  Rep.  813;  Cunningham  v.  Ander- 
son, 107  Mo.  371  ;  17  S.  W.  Rep.  972  ;  Freeman  Void  Jud.  Sales,  sec.  16. 

*  Moffitt  V.  Moffitt,  69  111.  641. 

*  Moore  r.  Neil,  39  111.  256;  89  Am.  Dec.  303. 

«  Mohr  V.  Porter,  51  Wis.  487 ;  8  N.  W.  Rep.  364. 

'  Thaw  V.  Falls,  10  Sup.  Ct.  Rep.  1037;  Thaw  c.  Ritchie,  136  U.  S.  519; 
Mohr  I'.  Manierre,  101  TJ.  S.  417  ;  Berrian  v.  Rogers,  43  Fed.  Rep.  467. 


564     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

different  rule  is  maintained  in  most  of  the  state  courts.^ 
But  not  in  all  of  them.^ 

Frequently  other  conditions  and  limitations,  jurisdic- 
tional in  their  nature,  are  imposed  by  statute,  and  must 
be  complied  with  in  order  to  vest  the  jurisdiction  and 
make  it  effectual  to  pass  the  title.^  But  the  fact  that  such 
conditions  have  been  complied  with  need  not  appear  af- 
firmatively from  the  record  in  case  of  a  collateral  attack/ 

The  cases  differ  as  to  the  necessity  of  making  the  ward 
a  party  to  a  petition  by  the  guardian  for  a  sale  of  real  es- 
tate. In  some  it  is  held  that  the  proceeding  is  not  an  ad- 
versary one,  that  the  guardian  represents  the  ward,  that 
the  ward  need  not  be  made  a  party,  that  the  mere  filing 
of  an  ex  parte  petition  in  the  proper  form  vests  the  court 
with  jurisdiction,  and  that  no  notice  to  the  ward  is  neces- 
sary.^ In  others  it  is  held  that  the  ward  must  be  made  a 
party.®  And  if  the  ward  must  be  made  a  party,  he  must, 
of  necessity,  have  notice  in  order  to  give  the  court  juris- 
diction to  bind  him  by  its  decree  and  order.^  But  this 
question  generally  depends  upon  the  language  of  the  stat- 
utory provisions. 

In  cases  of  sales  by  executors  or  administrators,  the  au- 
thorities are  not  agreed  as  to  the  necessity  of  making  the 
heirs  parties  to  the  proceedings.  Some  of  the  cases  hokl 
that  the  proceeding  is  one  in  rem,  to  which  all  the  world 

^  Berrian  v.  Rogers,  43  Fed.  Rep.  467 ;  ante,  sec.  74. 

"  Scarf  V.  Aldrich,  97  Cal.  360 ;  32  Pac.  Rep.  324 ;  Mohr  v.  Porter,  51 
Wis.  487;  8  N.  W.  Rep.  364. 

^Lemoine  v.  Ducote  (45  La.  Ann.),  12  Sou.  Rep.  939. 

*  Yoorhees  v.  Jackson,  10  Pet.  449;  May  v.  County  of  Logan,  30  Fed. 
Rep.  250. 

5  Smith  V.  Race,  27  111.  387  ;  81  Am.  Dec.  235 ;  Mason  v.  Wait,  4  Scam. 
127,  133;  Fitzgibbon  v.  Lake,  29  111.  165;  81  Am.  Dec.  302;  Furnish  v. 
Auston,  7  S.  W.  Rep.  399;  Thaw  v.  Falls,  10  Sup.  Ct.  Rep.  1037;  Thaw 
V.  Ritchie,  136  U.  S.  519;  Mohr  v.  Manierre,  101  U.  S.  417;  Scarf  r.  Al- 
drich, 97  Cal.  360;  32  Pac.  Rep.  324;  Mulford  v.  Beveridge,  78  111.  455; 
Mohr  V.  Porter,  51  Wis.  487  ;  8  N.  W.  Rep.  364 ;  Louisville,  etc.,  Ry.  Co. 
V.  Blythe,  69  Miss.  939;  11  Sou.  Rep.  111. 

«  Moore  v.  Hood,  9  Rich.  Eq.  (S.  Car.)  311  ;  70  Am.  Dec.  210;  Hunter 
V.  Hatton,  4  Gill  (Md.)  115  ;  45  Am.  Dec.  117. 

'  Roche  V.  Waters,  72  Md.  264 ;  19  Atl.  Rep.  535. 


SALES  OF  REAL  ESTATE.  565 

are  parties,  and  that  the  heirs  need  not  be  made  parties 
in  order  to  give  jurisdiction/  and  that  the  omission  to 
name  the  heirs  in  the  petition,  when  required  by  the  stat- 
ute, is  an  error  or  irregularity  only,  not  affecting  the  juris- 
diction of  the  court.^  But  this  must  necessarily  depend, 
in  a  great  measure,  upon  the  requirements  of  the  par- 
ticular statute  under  which  the  proceeding  is  had.^ 

Other  cases  hold  that  unless  the  heirs  are  made  parties 
to  the  proceeding  and  notified,  the  order  of  sale  is  void 
as  to  them.*  And  in  this  respect,  a  distinction  is  made 
in  some  of  the  cases  between  guardians'  sales  and  sales 
by  administrators  or  executors,  it  being  held,  as  we  have 
seen,  that  in  sales  by  guardians,  the  proceeding  is  not 
adverse  to  the  ward,  but  that  a  proceeding  by  an  admin- 
istrator or  executor  is  adverse  to  the  heir.^ 

In  cases  holding  the  proceeding  to  be  adverse,  it  is  held 
to  be  one  in  personam  that  must  be  founded  upon  notice.^ 
But  this  is  a  distinction  that  is  not  recognized  in  all  of  the 
cases  as  will  be  seen  from  the  cases  cited  above.  This 
matter  of  notice  is  usually  governed  entirely  by  statute, 
and  notice  in  some  form  to  the  ward,  or  to  some  relative 
who  will  be  likely  to  look  after  his  interests,  or  to  both, 
is  generally  required.  In  case  of  sales  by  executors  or  ad- 
ministrators, personal  service  of  notice  is  not  generally 
required,  and  notice  by  publication   to  all  persons  inter- 

^  McPherson  v.  Cunliff,  11  Serg.  &  Rawle,  422;  14  Am.  Dec.  642;  Lyons 
V.  Hammer,  84  Ala.  197  ;  4  Sou.  Rep.  26  ;  Florentine  v.  Barton,  2  Wall. 
210;  Grignon  v.  Astor,  2  How.  819,  338;  Freeman  Void  Jud.  Sales,  sec. 
15;  Watkinsi'.  Holman,  16  Pet.  25,  62. 

'  Morris  v.  Hogle,  37  111.  150;  87  Am.  Dec.  243;  Lyons  v.  Hamner,  84 
Ala.  197;  4Sou.  Rep.  26;  Bingham  i;.  Jones,  84  Ala.  202;  4  Sou.  Rep. 
409;  Stow  V.  Kimball,  28  111.  93,  106;  Hobson  v.  Ewan,  62  111.  146. 

»  Perry  v.  Adams,  98  N.  Car.  167;  3  S.  E.  Rep.  729. 

*  Adams  v.  Jeffries,  12  Ohio,  253 ;  40  Am.  Dec.  477 ;  Reynolds  v.  Stan- 
bury,  20  Ohio,  344,  357;  55  Am.  Dec.  459;  Beckett  v.  Selover,  7  Cal.  215; 
68  Am.  Dec.  237;  Perry  v.  Adams,  98  N.  Car.  167;  3  S.  E.  Rep.  729; 
Menefee  v.  Marge,  4  S.  E.  Rep.  726 ;  Harrison  v.  Harrison,  106  N.  Car. 
282;  11  S.  E.  Rep.  356;  Freeman  Void  Jud.  Sales,  sec.  16. 

*  Mohr  V.  Porter,  51  Wis.  487;  8  N.  W.  Rep.  364. 

*  Freeman  Void  Jud.  Sales,  sec.  16. 


566       COMxMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

ested,  or  a  general  notice  to  the  public,  is  usually  author- 
ized and  held  to  be  sufficient.^ 

Such  constructive  notice  binds  infants  as  well  as  adults.* 
But  notice  in  such  form  as  is  required  is  necessary  to  give 
the  court  jurisdiction  to  order  the  sale.^ 

If  the  court  has  obtained  jurisdiction  of  the  subject- 
matter  and  of  the  person  of  the  owner  of  the  land,  his 
death  does  not  deprive  the  court  of  jurisdiction  to  proceed, 
and  the  failure  to  notify  his  heirs  after  his  death  does  not 
render  the  sale  void  for  want  of  jurisdiction.^ 

The  courts  have  been  very  liberal  in  upholding  notices 
as  sufficient,  when  defective,  especially  where  the  question 
arises  in  cases  affecting  innocent  purchasers  under  such 
proceedings,  and  the  rule  that  mere  defects  in  the  notice 
will  not  render  the  proceedings  void,  or  affect  the  title  of 
the  property  conveyed,  is  universally  applied  in  this  class 
of  cases.^ 

If  the  proper  notice  is  given,  it  vests  the  court  with  juris- 
diction of  the  person  of  a  minor  as  well  as  of  other  persons 
interested,  and  the  failure  of  a  guardian  ad  litem  to  answer, 
although  it  may  be  cause  for  reversal,  does  not  render  the 
proceeding  invalid  as  to  such  rainor.^ 

So,  where  the  minor  is  regularly  notified  of  the  proceed- 
ing, a  failure  to  appoint  a  guardian  ad  litem  or  next  friend 
to  represent  him  is  an  irregularity  only,  and  will  not  ren- 
der the  proceeding  void  as  to  such  minor.^  And  also  the 
failure  to  notify  the  guardian  ad  litem  where  the  minors 

I  Hobson  V.  Ewan,  62  111.  146;  Gibson  v.  Roll,  27  111.  88;  81  Am.  Dec. 
219. 

'  Thomas  v.  Parker,  97  Cal.  456;  32  Pac.  Rep.  562. 

»  Morris  v.  Hogle,  37  111.  150;  87  Am.  Dec.  243. 

*  1  Black  Judg.,  sec.  200;  Palmerton  v.  Hoop,  131  Ind.  23;  30  N.  E. 
Rep.  874. 

^  Goudy  V.  Hall,  36  111.  313;  87  Am.  Dec.  217  ;  Harris  v.  Lester,  80  111. 
307 ;  Bunce  v.  Bunce,  59  la.  533 ;  13  N.  W.  Rep.  705 ;  Hamiel  v.  Donnelly, 
75  la.  93 ;  39  N.  W.  Rep.  210;  Scarf  v.  Aldrich,  97  Cal.  360;  32  Pac.  Rep. 
324. 

"Goudy  V.  Hall,  36  111.  313;  87  Am.  Dec.  217. 

'  Tate  V.  Mott,  96  N.  Car.  19;  2  S.  E.  Rep.  176;  Gage  v.  Schroder,  73 
111.  44. 


SALES  OF  REAL  ESTATE.  567 

have  been  properly  served.^  But  the  appointment  of  a 
guardian  ad  litem  and  an  answer  by  him  will  not  give  the 
court  jurisdiction  where  no  notice  has  been  given,^  nor 
can  such  guardian,  when  appointed,  waive  notice  to  the 
minor  defendant.^  But  where  a  minor  has  been  notified 
and  is  properly  represented  by  guardian  ad  litem,  the  pro- 
ceedings are  just  as  binding  and  conclusive  upon  him  as 
they  would  be  upon  an  adult  properly  represented  by  his 
attorney.*  It  is  usually  held  that  a  general  guardian  can 
not  appear  for  and  waive  service  upon  his  ward.*  But 
there  are  cases  holding  to  the  contrary.^ 

Where  the  court  has  obtained  jurisdiction,  a  sale  of  the 
property  to  a  third  party  will  not  be  affected  by  a  subse- 
quent reversal  of  the  order  or  judgment  decreeing  the 
sale.^ 

It  is  generally  held,  at  the  present  day,  that  it  will  be 
presumed,  where  the  record  is  silent  on  the  subject,  that 
the  proper  notice  was  given.**  But  the  rule  has,  in  some 
of  the  authorities,  been  limited  to  cases  where  the  heirs 
who  are  entitled  to  notice  have  been  made  parties  to  the 
record  by  name.® 

Where  the  record  recites  the  giving  of  notice,  or  other 
jurisdictional  facts,  this  is  usually  held  to  be  sufficient  to 
uphold  the  jurisdiction  in  the  absence  of  any  showing  to  the 
contrary  in  the  record  or  proceedings,  and  that  the  finding 
that  notice  was  given  can  not  be  attacked  collaterally.^" 

'  Coffin  V.  Cook,  106  N.  Car.  376;  11  S.  E.  Rep.  371. 

*  Clark  V.  Thompson,  47  111.  25 ;  95  Am.  Dec.  457 ;  Moore  v.  Starks,  1 
Ohio  St.  369;  Freeman  Void  Jud.  Sales,  sec.  17. 

*  Ante,  sees.  13,  23,  34;  Clark  v.  Thompson,  47  111.  25;  95  Am.  Dec 
457;  Freeman  Void  Jud.  Sales,  sec.  17. 

*  Chardavoyne  v.  Lynch,  82  Ala.  376 :  3  Sou.  Rep.  98. 
'  Ante,  sees.  13,  34  ;  Freeman  Void  Jud.  Sales,  sec.  17. 

«  Ante,  sec.  34  ;  Ewing  v.  Higby,  7  Ohio,  Part  1,  198  ;  28  Am.  Dec.  633. 

'  Goudy  V.  Hall,  36  111.  313;  87  Am.  Dec.  217;  Whitman  v.  Fisher,  74 
111.  147. 

^  Ante,  sees.  23,  25 ;  Martin  v.  Robinson,  67  Tex.  368;  3  S.  W.  Rep.  550; 
Kelley  r.  Morrell,  29  Fed.  Rep.  736. 

»  Mitchell  V.  Bowen,  8  Ind.  197 ;  65  Am.  Dec.  758. 

^°Ante,  sees.  23,  25 ;  Harris  v.  Lester,  80  111.  307 ;  Martin  v.  Robinson, 
67  Tex.  368;  3  S.  W.  Rep.  550;  Goodwin  v.  Sims,  86  Ala.  102;  5  Sou. 


« 


568       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

The  general  rule  is  that  where  jurisdiction  appears  on 
the  face  of  the  record,  a  purchaser  is  not  required  to  look 
beyond  the  decree  or  order  for  the  sale.^  It  is  usually 
held  that  the  record  of  the  court  imports  absolute  verity 
and  can  not  be  impeached  collaterally.^  But  where  the 
court  is  held  to  be  one  of  special  jurisdiction,  an  order 
made  by  it  for  the  sale  of  real  estate  is  not  of  itself,  inde- 
pendent of  a  recital  of  the  jurisdictional  facts  in  the  rec- 
ord or  proceedings,  evidence  that  the  court  had  jurisdic- 
tion.^ 

As  has  been  said,  however,  jurisdiction  of  this  kind  has, 
by  the  great  weight  of  modern  authority,  been  declared  to 
be  general,  and  not  special ;  and  if  general,  the  mere  ren- 
dition of  the  order  or  decree  is,  in  case  of  a  domestic 
court,  at  least,  conclusive  evidence  in  case  of  a  collateral 
attack,  that  the  court  had  jurisdiction.* 

In  some  of  the  cases  in  which  the  jurisdiction  is  treated 
as  special  it  is  held  that  the  recitals  in  the  record  are  prima 
facie  evidence  only  of  the  facts  recited.* 

The  court  ordering  the  sale  must  have  jurisdiction  of  the 
subject-matter  as  well  as  of  the  persons  of  the  parties  in- 
terested. Therefore  an  order  of  a  court  in  one  state  for 
the  sale  of  property  situate  in  another  state  is  void  for 
want  of  jurisdiction  of  the  subject-matter.^ 

In  most  of  the  states  provision  is  made  for  the  confirma- 

Rep.  587;  Edwards  v.  Moore,  99  N.  Car.  1;  5  S.  E.  Rep.  13;  Richardson 
V.  Butler,  82  Cal.  174;  23  Pac.  Rep.  9. 
1  Thomson  v.  Tolmie,  2  Pet.  157. 

*  Davis  V.  Hudson,  29  Minn.  27;  11  N.  W.  Rep.  136;  Culver  v.  Har- 
denbergh,  37  Minn.  225 ;  33  N.  W.  Rep.  792 ;  Curran  v.  Kuby,  37  Minn. 
330 ;  33  N.  W.  Rep.  907 ;  Succession  of  Keller,  39  La.  Ann.  579 ;  2  Sou. 
Rep.  553;  Linman  v.  Riggins,  40  La.  Ann.  761;  5  Sou.  Rep.  49;  Good- 
win V.  Sims,  86  Ala.  102 ;  5  Sou.  Rep.  587 ;  Schaale  v.  Wasey,  70  Mich. 
414;  38  N.  W.  Rep.  317;  Grevemburg  v.  Bradford,  44  La.  Ann.  400;  10 
Sou.  Rep.  786 ;  Davis  v.  Gaines,  104  U.  S.  380 ;  Bostwick  v.  Skinner,  80 
111.  147. 

3  Sloan  V.  Sloan,  25  Fla.  53 ;  5  Sou.  Rep.  603. 

*  Ante,  sec.  23. 

5  Comstock  V.  Crawford,  3  Wall.  396. 

«  Salmond  v.  Price,  13  Ohio,  368 ;  42  Am.  Dec.  204  ;  Price  v.  Johnston^ 
1  Ohio  St.  390. 


SALES  OF  REAL  ESTATE.  569 

tion  of  sales  by  the  court.  As  to  the  effect  of  such  con- 
firmation the  authorities  are  not  agreed.  In  some  it  is 
held  that,  in  order  to  render  the  confirmation  effectual,  the 
court  must  have  obtained  jurisdiction  of  the  proceeding 
by  the  filing  of  the  necessary  petition  and  the  giving  of  tlie 
required  notice.  And  that  without  this  the  proceedings 
are  void,  notwithstanding  the  order  of  confirmation.^  But 
if  the  court  has  jurisdiction,  an  order  confirming  a  sale' 
may  uphold  it  in  favor  of  an  innocent  purchaser,  although 
it  would  otherwise  be  invalid  for  want  of  a  compliance 
with  the  requirements  of  the  statute.'  And  where  a  con- 
firmation is  required  by  statute  before  the  making  of  the 
conveyance,  such  confirmation  is  necessary  to  the  validity 
of  the  title.^  A  confirmation  will  not  be  presumed,  but 
must  be  affirmatively  shown.* 

In  some  of  the  cases  an  order  of  confirmation  is  treated 
as  a  judgment,  and  is,  therefore,  conclusive  in  case  of  a 
collateral  attack." 

In  some  of  the  states  provision  is  made  for  the  com- 
mencement of  proceedings  by  a  creditor  for  a  sale  of  real 
estate  to  satisfy  his  debt.^ 

In  such  cases  the  general  principles  affecting  the  juris- 
diction are  the  same,  in  all  material  respects,  as  in  proceed- 
ings instituted  by  the  executor  or  administrator. 

It  is  sometimes  required  by  statute  that,  upon  a  sale 
being  ordered,  the  guardian,  or  other  person  authorized  to 
make  the  sale,  shall  execute  an  additional  bond  to  secure 
the  amount  to  be  realized  from  the  sale.  But  the  failure 
to  give  such  bond  does  not  aflfect  the  jurisdiction  of  the 

^  Mitchell  V.  Bowen,  8  Ind.  197  ;  65  Am.  Dec.  758  ;  Cunningham  v.  An- 
derson, 107  Mo.  371 ;  17  S.  W.  Rep.  972. 

»  Brown  v.  Christie,  27  Tex.  73  ;  84  Am.  Dec.  607  ;  Apel  v.  Kelsey,  47 
Ark.  413;  2  S.  W.  Rep.  102;  May  v.  County  of  Logan,  30  Fed.  Rep.  250. 

»  Titman  v.  Riker,  43  N.  J.  Eq.  122;  10  Atl.  Rep.  397;  Apel  v.  Kelsey, 
47  Ark.  413 ;  2  S.  W.  Rep.  102  ;  Harrison  v.  Ilgner,  74  Tex.  86  ;  11  S.  W. 
Rep.  1054;  Bone  v.  Tyrrell,  113  Mo.  175;  20  S.  W.  Rep.  796. 

*  Apel  V.  Kelsey,  47  Ark.  413;  2  8.  W.  Rep.  102. 

»  Andrews  v.  Goff,  17  R.  I.  205 ;  21  Atl.  Rep.  347  ;  Allen  v.  Shanks,  90 
Tenn.  359;  16  S.  W.  Rep.  715. 

*  Brooks  V.  Brooks,  97  N.  Car.  136  ;  1  S.  E.  Rep.  487. 


570      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

court,  or  render  the  sale  invalid  as  affecting  an  innocent 
purchaser,'  l^or  does  a  defect  in  the  original  bond  of  the 
guardian  affect  the  jurisdiction  to  sell  the  real  estate,*  nor 
a  defect  in  the  additional  bond.^  It  will  be  presumed, 
where  the  record  is  silent  on  the  subject,  that  the  proper 
bond  was  given.*  The  question  whether  the  giving  of  a 
bond  is  necessary  to  the  validity  of  the  sale  depends,  of 
course,  upon  the  requirements  of  the  statute  under  which 
the  proceedings  are  had.  And  under  some  statutes  it  has  ' 
been  held  that  a  failure  to  give  the  bond  invalidates  the 
sale.' 

A  proceeding  for  the  sale  of  real  estate  is  within  the 
act  of  congress  authorizing  the  removal  of  causes  from 
the  state  to  the  federal  courts,  and  a  federal  court  may 
obtain  jurisdiction  thereof  by  such  removal,  although 
the  same  could  not  be  originally  commenced  in  such 
court.^ 

The  question  has  been  presented  to  the  courts,  at  various 
times,  whether  the  legislature  can,  by  special  statute,  and 
without  the  intervention  of  the  courts,  authorize  the  sale 
of  the  property  of  one  person  by  another.  The  question 
turns  upon  the  character  of  the  act  authorizing  the  sale, 
whether  it  is  judicial  in  its  nature  or  not.  Such  statutes 
authorizing  the  sale  of  lands  by  one  occupying  a  trust  re- 
lation to  another,  who  is  incapable  of  acting  for  himself, 
have  been  upheld  on  the  ground  that  to  grant  such  per- 
mission, when  necessary  or  proper  to  carry  out  the  trust, 
is  not  an  act  in  itself  judicial.^ 

'  Fender  ;•.  Powers,  67  Mich.  433;  35  N.W.  Rep.  80;  Davidson  r.  Bates, 
111  Ind.  391;  12  N.  E.  Rep.  687;  Hamiel  v.  Donnelly,  75  la.  93;  39  N.  W. 
Rep.  210 ;  Kelly  v.  Pitcher,  4  N.  Y.  Supl.  3 ;  Arrowsmith  v.  Harmoning, 
42  Ohio  St.  254;  Howbert  v.  Heyle,  47  Kan.  58;  27  Pac.  Rep.  116;  Ar- 
rowsmith V.  Gleason,  129  U.  S.  86 ;  9  Sup.  Ct.  Rep.  237. 

'  Kelley  v.  Morell,  29  Fed.  Rep.  736. 

3  In  re  Winona  Bridge  Ry.  Co.,  52  N.  W.  Rep.  1079. 

*  Saul  r.  Frame,  22  S.  W.  Rep.  984. 

5  Weld  ('.  Johnson  Mfg.  Co.,  54  N.  W.  Rep.  335. 

«  Elliott  V.  Shuler,  50  Fed.  Rep.  454 ;  ante,  sec.  67  ; 

'Rice  V.  Parkman,  16  Mass.  326;  Carroll  v.  Olmsted,  16  Ohio,  25^1 ; 
Williamson  v.  Suydam,  6  Wall.  723;  Clark  v.  Van  Surlay,  15  Wend  436 ; 


SALES  OF  REAL  ESTATE.  571 

But  this  doctrine  has  not  been  accepted  in  other  cases.' 

If  the  authorization  calls  for  an  investigation  and  a 
judgment  thereon,  it  is  clearly  a  judicial  act,  and  can  not 
be  exercised  by  the  legislative  branch  of  the  government.^ 
And  a  statute  authorizing  one  not  occupying  a  fiduciary 
relation  to  another  to  sell  the  real  estate  of  the  latter  can 
not  be  supported  on  any  such  principle,  and  such  statutes 
are  held  to  be  unconstitutional.^ 

Nor  can  a  special  statute  attempting  to  authorize  the 
sale  of  the  property  of  one  not  laboring  under  any  disa- 
bility, and  capable  of  acting  for  himself,  be  upheld.*  The 
weight  of  authority  seems  to  be  that  statutes  of  the 
former  class  are  valid,  and  that  those  of  the  latter  class 
are  invalid.^ 

It  is  believed  to  be  unnecessary,  in  this  connection,  to 
incumber  these  pages  with  a  discussion  of  jurisdictional 
questions  growing  out  of  the  sales  of  real  estate  resulting 
from  ordinary  adversary  proceedings,  whether  such  pro- 

Cochran  v.  Van  Surlay,  20  Wend.  365 ;  32  Am.  Dec.  570 ;  Wilkinson  v. 
Leland,  2  Pet.  627  ;  Brevoort  v.  Grace,  53  N.  Y.  245  ;  Watkins  v.  Holmau, 
16  Pet.  25,  59;  Hoyt  v.  Sprague,  103  U.  S.  613;  Louisville,  etc.,  Ry.  Co. 
V.  Blythe,  69  Miss.  939;  11  Sou.  Rep.  111. 

'  Jones  V.  Perry,  10  Yerg.  (Tenn.)  59;  30  Am.  Dec.  430;  Lincoln  v. 
Alexander,  52  Cal.  482 ;  28  Am.  Rep.  639. 

2  Ante,  sees.  29,  33 ;  Rice  v.  Parkman,  16  Mass.  326. 

'  Lane  v.  Dorman,  3  Scam.  (111.)  238;  36  Am.  Dec.  543;  Cash,  Appel- 
lant, 6  Mich.  193;  Powers  v.  Bergen,  6  N.  Y.  358;  Shoenberger  v.  School 
Directors,  32  Pa.  St.  34. 

*  Brevoort  v.  Grace,  53  N.  Y.  245,  254. 

^  Cooley  Const.  Lim.,  *  pp.  97-107. 

"The  rule  upon  this  subject,  which  appears  to  be  deducible  from  the 
authorities,  is  this:  If  the  party  standing  in  position  of  trustee  applies 
for  permission  to  convert  by  a  sale  the  real  property  into  personal,  in 
order  to  effectuate  the  purposes  of  the  trust,  and  to  accomplish  objects  in 
the  interest  of  the  cestui  que  trust  not  otherwise  attainable,  there  is  noth- 
ing in  the  granting  of  permission  which  is  in  its  nature  judicial.  To 
grant  permission  is  merely  to  enlarge  the  sphere  of  the  fiduciary  au-' 
thority,  the  better  to  accomplish  the  purpose  for  which  the  trusteeship 
exists ;  and  while  it  would  be  entirely  proper  to  make  the  questions 
which  might  arise  assume  a  judicial  form,  by  referring  them  to  some 
proper  court  for  consideration  and  decision,  there  is  no  usurpation  of 
power  if  the  legislature  shall,  by  direct  action,  grant  the  permission." 
Cooley  Const.  Lim.,  *  p.  98. 


572      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

ceedings  be  governed  by  the  common  law,  by  statutes,  or 
by  equitable  principles.  These  questions  have  been  suffi- 
ciently covered  by  the  discussion,  in  the  previous  sections 
of  this  work,  of  the  general  principles  aliecting  all  adver- 
sary proceedings.  And  it  would  seem  to  be  unnecessary, 
also,  to  consume  time  in  discussing  the  sale  or  other  dis- 
position of  property  by  proceedings  in  partition.  Such 
proceedings  are  governed  at  the  present  day  almost  en- 
tirely by  statutes  in  the  different  states.  And,  in  the  main, 
general  principles  affecting  other  adversary  proceedings 
are  applicable  to  them.  It  is  of  but  little  consequence, 
practically,  w^iether  such  jurisdiction  is  exercised  by  a 
court  of  equity,  probate  courts,  or  courts  of  general  com- 
mon law  or  statutory  jurisdiction,  as  in  any  case  the  stat- 
ute of  the  particular  state  in  which  the  jurisdiction  is  ex- 
ercised is  the  guide  of  the  court  and  the  measure  and  lim- 
itation of  its  jurisdiction.  But  it  is  held  in  some  of  the 
states  that  a  statute  providing  for  the  partition  of  lands 
does  not  deprive  a  court  of  chancery  of  its  jurisdiction  in 
such  proceedings,  and  that  such  statute  does  not  apply  to 
such  courts.^ 

77.  Arbitration.  Arbitration  is  defined  to  be  "  the  in- 
vestigation and  determination  of  a  matter  or  matters  of 
difference  between  contending  parties  by  one  or  more  un- 
oflicial  persons,  chosen  by  the  parties  and  called  arbitrators 
or  referees."*  There  are,  in  most  of  the  states,  two  kinds 
of  arbitration,  common  law  and  statutory.^  The  most 
material  differences  between  the  two  are  that  a  common 
law  submission  may,  except  where  the  subject-matter  can 
only  pass  by  writing,  be  by  parol,  while  statutes  providing 
for  arbitration  usually  require  the  submission  to  be  in 
writing;^  and  common  law  awards  under  arbitrations, 
stand  upon  the  decision  of  the  arbitrators  alone  without 

1  Labadie  v.  Hewitt,  85  111.  341.  '  1  Am.  &  Eng.  Enc.  of  Law,  647. 

*  Boots  V.  Canine,  58  Ind.  450. 

*  1  Am.  &  Eng.  Enc.  of  Law,  655;  Boots  v.  Canine,  58  Ind.  450;  Boots 
V.  Canine,  94  Ind.  408;  Dilks  v.  Hammond,  86  Ind.  563  ;  Carson  v.  Ear- 
lywine,  14  Ind.  256 :  Darling  v.  Darling,  16  Wis.  644. 


arbithation.  573 

the  intervention  of  or  any  action  on  the  part  of  the  courts, 
while  statutory  awards  are  usually  required  to  be  reported 
to  and  confirmed  by  some  designated  court  and  made  the 
foundation  of  a  judgment  or  decree  of  such  court  ;^  and 
in  case  of  common  law  arbitrations  no  particular  form  of 
submission  is  necessary,  so  that  the  intention  of  the  parties 
is  apparent,^  while  in  case  of  a  statutory  arbitration  the 
submission  must  be  such,  in  form  and  substance,  substan'- 
tially,  as  the  statute  requires.^  But  the  courts  have  shown 
great  liberality  in  upholding  statutory  awards  made  under 
defective  submissions.* 

It  has  sometimes  been  held  that  a  submission  that  does 
not  conform  to  the  statute  may  be  upheld  as  a  common 
law  award.  But  where  it  appears  from  the  submission 
that  it  was  the  intention  of  the  parties  to  proceed  under 
the  statute  and  there  is  a  failure  to  comply  therewith,  the 
award  can  not  be  enforced  by  either  of  the  parties  as  a 
common  law  award.^ 

The  subject  of  jurisdiction  in  matters  of  arbitration  pre- 
sents two  phases  necessary  to  be  considered,  viz.,  the  ques- 
tion of  the  jurisdiction  and  powers  of  the  arbitrators,  and 
the  effect  of  a  submission  to  arbitration  of  matters  in- 
volved in  actions  pending,  upon  the  jurisdiction  of  the 
courts  in  which  such  actions  have  been  commenced.  And 
the  former  of  these,  so  far  as  it  affects  statutory  arbitra- 
tions, involves,  also,  the  jurisdiction  of  the  court  to  which 
the  award  is  returned  and  its  power  to  receive  and  act 
upon  it.® 

These  will  be  considered  as  brieliy  as  possible  and  with- 

*  Boots  V.  Canine,  58  Ind.  450;  Estep  >:  Larsh,  16  Ind.  82  ;  Iledrick  v. 
Judy,  23  Ind.  548. 

"  1  Am.  &  Eng.  Enc.  of  Law,  656. 

^  1  Am.  &  Eng.  Enc.  of  Law,  654;  Hamilton  v.  Hamilton.  27  111.  158; 
Barney  v.  Flower,  27  Minn.  403;  7  N.  W.  Rep.  823;  Franklin  ^Ff'g  Co. 
V.Pratt,  101  Mass.  359;  Kreiss  v.  Hotaling,  96  Cal.  617;  31  Pac.  Hep. 
740;  Darling  v.  Darling,  16  Wis.  644 ;  Conger  v.  Dean,  3  la.  463;  66  Am. 
Dec.  93. 

*  1  Am.  &  Eng.  Enc.  of  Law,  655.  ^  Allen  v.  Chase,  3  Wis.  249. 

«  Ryan  v.  Dougherty,  30  Cal.  219 ;  Fortune  v.  Killebrew,  23  S.  W. 
Rep.  976. 


574        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

out  cumbering  the  subject  with  a  discussion  of  mere  mat- 
ters of  practice  not  affecting  the  subject  of  jurisdiction. 

It  may  be  said,  generally,  that  the  submission,  whether 
it  be  a  common  law  or  a  statutory  one,  is  the  measure  and 
limitation  of  the  jurisdiction  and  powers  of  the  arbitrators.' 
And  this  is  true  of  submissions  of  matters  pending  in 
court.'^  But  this  is  subject  to  statutory  regulations  and 
the  power  of  the  disputants  to  submit,  as  well  as  the  ju- 
risdiction of  the  arbitrators  to  decide,  may  be  limited  and 
controlled  by  law. 

Where  the  submission  is  of  matters  pending  in  court, 
all  of  the  parties  to  the  action  must  consent  to  such  sub- 
mission or  it  will  be  void.^  And  the  same  rule  applies  to 
a  statutory  submission  of  matters  not  pending  in  court. 
Unless  all  parties  in  interest  join  in  the  submission,  the 
award,  and  a  judgment  entered  thereon,  are  void.* 

The  parties  are  entitled  to  notice  of  the  time  and  place 
of  the  hearing,  and  unless  such  notice  is  given  or  waived, 
an  award  made  will  be  void.'  And  the  arbitrators  must 
meet  at  the  time  and  place  named  in  the  submission.^ 
So  the  parties  must  have  an  opportunity  to  be  present  at 
every  stage  of  the  investigation.^  But  such  notice  is 
waived  by  an  appearance,^  or  by  such  acts  as  show  that  it 

'  1  Am.  &Eng.  Enc.  of  Law,  675;  Ryan  v.  Dougherty,  30  Cal.  219; 
Muldrow  ?;.  Norris,  12  Cal.  331;  Gear  y.  Bracken,  1  Pinney  (Wis.),  249; 
Cook  V.  Carpenter,  34  Vt.  121 ;  80  Am.  Dec.  670;  Strum  v.  Cunningham, 
3  Ohio,  286;  Buntain  v.  Curtis,  27  111.  373  ;  Palmer  v.  Van  Wick,  21  S.  W. 
Rep.  761. 

'  Cook  V.  Carpenter,  34  Vt.  121 ;  80  Am.  Dec.  670. 

^  Gregory  v.  Boston  Safe  Deposit,  etc.,  Co.,  36  Fed.  Rep.  408. 

*  Fortune  v.  Killebrew,  23  S.  W.  Rep.  976. 

^  1  Am.  &  Eng.  Enc.  of  Law,  685;  Curtis  v.  Sacramento,  64  Cal.  102  : 
28  Pac.  Rep.  108;  Elmendorf  v.  Harris,  23  Wend.  628;  35  Am.  Dec.  587 ; 
Lutz  V.  Lithicum,  8  Pet.  165 ;  Dormoy  v.  Knower,  55  la.  722 ;  8  N.  W. 
Rep.  670;  Grimes  v.  Brown,  18  S.  E.  Rep.  87;  Warren  d.  Tinsley,  53 
Fed.  Rep.  689;  3  C.  C.  A.  Rep.  613;  Emery  v.  Owings,  7  Gill  (Md.),48S; 
48  Am.  Dec.  580;  Slocum  v.  Damon,  1  Pinney  (Wis.),  520.  But  see  to 
the  contrary,  note  to  Elmendorf  v.  Harris,  35  Am.  Dec.  587,  591. 

®  Strum  V.  Cunningham,  3  Ohio,  286. 

'  Rosenau  v.  Legg,  82  Ala.  568;  2  Sou.  Rep.  441 ;  Alexander  v.  Cun- 
ningham, 111  111.  511. 

8 1  Am.  &  Eng.  Enc.  of  Law,  686;  Dickerson  v.  Hays,  4  Blkf.  (Ind.) 
44;  Kane  v.  City  of  Fond  du  Lac,  40  Wis.  495. 


ARBITRATION.  575 

was  the  purpose  and  intention  of  the  parties  that  the  no- 
tice should  not  be  given.'  JS'otice  to  one  of  several  part- 
ners, although  they  have  signed  the  submission  separately, 
is  sufficient,^ 

The  duration  of  the  authority  of  the  arbitrators  may  be 
fixed  and  limited  by  the  submission  and  such  limitation  as 
to  time  will  be  binding.^  And  an  award  delivered  after 
the  time  designated  in  the  submission  is  inoperative.* 

The  failure  to  make  the  award  within  the  time  limited 
deprives  the  court  to  which  the  award  is  to  be  returned, 
as  well  as  the  arbitrators,  of  jurisdiction.^  But  the  time 
may  be  extended  by  consent  of  the  parties.® 

A  failure  of  the  arbitrators  to  meet  at  the  time  fixed  in 
the  submission  does  not  determine  their  powers,  unless  it 
is  so  provided  in  the  submission,  and  they  may  appoint 
another  time  of  meeting.^ 

The  powers  and  jurisdiction  of  the  arbitrators  expire 
with  the  making  of  the  award.^  And  they  can  not  after- 
ward alter  or  change  their  award,^  nor  make  a  new  award 
where  the  first  is  void  for  defects  therein. '°  But  may  cor- 
rect mere  clerical  errors  not  involving  a  reconsideration 
of  the  merits." 

An  attempt  on  the  part  of  the  arbitrators  to  change  the 
award  after  it  is  made  does  not  render  it  void,  but  the 
award  stands  as  it  was  originally  made.'^ 

Statutes  sometimes  require  that  the  submission  shall  fix 
the  time  within  which  the  award  shall  be  made.  Under 
such  a  statute,  and  a  submission  made  under  it,  an  award 

'  Spencer  v.  Curtis,  57  Ind.  221 ;  Hubbard  v.  Hubbard,  61  111.  228. 

'  Haywood  v.  Harmon,  17  111.  477. 

'  1  Am.  &  Eng.  Enc.  of  Law,  688;  Ryan  v.  Dougherty,  30  Cal.  219. 

*  Conrad  v.  Johnson,  20  Ind.  421.        ^  Ryan  v.  Dougherty,  30  Cal.  219. 

*  Buntain  v.  Curtis,  27  111.  373.        '  Harrington  v.  Rich,  6  Vt.  666. 

«1  Am.  &  Eng.  Enc.  of  Law,  689;  Porter  v.  Scott,  7  Cal.  312;  Rogers 
r.  Corrothers,  26  W.  Va.  238;  Flannery  v.  Sahagian,  134  N.  Y.  85;  31 
N.  E.  Rep.  319;  Bayne  v.  Morris,  1  Wall.  97. 

*  Indiana  Cent.  Ry.  Co.  v.  Bradley,  7  Ind.  49 ;  Rogers  v.  Corrothers, 
26  W.  Va.  238;  Flannery  v.  Sahagian,  134  N.  Y.  85 ;  31  N.  E.  Rep.  319. 

>"  Flannery  v.  Sahagian,  134  N.  Y.  85  ;  31  N.  E.  Rep.  319. 

"  Gooddell  v.  Raymond,  27  Vt.  241 ;  Bayne  v.  Morris,  1  Wall.  97. 

"  Rogers  v.  Corrothers,  26  W.  Va.  238. 


576       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

made  after  the  time  limited,  gives  the  court  to  which 
it  is  returned  no  jurisdiction.^ 

Power  is  usually  given  to  appoint  an  umpire  in  case  the 
arbitrators  fail  to  agree.  If  so  the  submission  controls  as 
to  the  manner  of  his  appointment  and  his  powers  when 
appointed.^  At  common  law  the  appointment  may  be  by 
parol.^ 

If  the  submission  does  not  provide  the  manner  of  ap- 
pointing an  umpire,  it  is  generally  held  that  if  the  submis- 
sion is  in  writing  the  umpire  must  be  appointed  in  writing, 
otherwise  he  may  be  appointed  by  parol.*  But  where  the 
statute  requires  the  appointment  to  be  in  writing  the  stat- 
ute must  be  followed.^  If  power  to  appoint  an  umpire  is 
not  given  by  the  submission,  no  such  power  exists.® 

The  award  may,  at  common  law,  be  in  parol  unless  it 
disposes  of  property  which  can  only  be  passed  by  a  writ- 
ten instrument/  But  whether  the  proceedings  are  in 
writing  or  in  parol  they  must  conform,  in  all  material  re- 
spects, to  the  submission.* 

A  statutory  award  must  conform  to  the  requirements  of 
the  statute.^  The  award  must  cover  the  whole  subject- 
matter  submitted  or  it  will  be  void.^"  But  it  is  held  that 
in  order  to  impeach  an  award  made  in  pursuance  of 
a  conditional  submission,  on  this  ground,  only  a  part 
of  the  matters  submitted  having  been  decided,  the  party 
must  distinctly  show  that  there  were  other  points  in  dif- 

1  Bent  V.  Erie  Telegraph  &  Tel.  Co.,  114  Mass.  165;  10  N.  E.  Rep.  778. 

^  1  Am.  &  Eng.  Enc.  of  Law,  690. 

»  Elmendorf  v.  Harris,  23  Wend.  628 ;  35  Am.  Dec.  587. 

*  1  Am.  &  Eng.  Enc.  of  Law,  691. 

*  Elmendorf  v.  Harris,  23  Wend.  628 ;  35  Am.  Dec.  587  ;  In  re  Grening, 
26  N.  Y.  Supl.  117. 

*  McMahan  v.  Spinning,  51  Ind.  187. 

'  1  Am.  &  Eng.  Enc.  of  Law,  692;  Marsh  v.  Packer,  20  Vt.  198. 

« Gear  v.  Bracken,  1  Pinney  (Wis.),  249;  Pettibone  v.  Perkins,  6 
Wis.  616 ;  Johnson  v.  Noble,  13  N.  H.  286 ;  38  Am.  Dec.  485. 

9  1  Am.  &  Eng.  Enc.  of  Law,  692;  Estep  v.  Larsh,  16  Ind.  82. 

1"  Porter  r.  Scott,  7  Cal.  312 ;  Muldrow  v.  Norris,  12  Cal.  331 ;  White 
V.  Arthur,  59  Cal.  33;  Pettibone  v.  Perkins,  6  Wis.  616;  Canfield  v.  Wa- 
tertown  F.  Ins.  Co.,  55  Wis.  419;  13  N.  W.  Rep.  252 ;  Morse  v.  Hale,  27 
Vt.  660 ;  Jones  v.  Welwood,  71  N.  Y.  208. 


ARBITRATION.  577 

ference,  of  which  express  notice  was  given  the  arbitrators 
and  that  they  neglected  to  determine  them.^  And  where 
the  submission  covers  all  matters  in  difference  between  the 
parties  they  may,  on  the  hearing,  submit  such  matters 
only  as  they  may  elect  and  the  award  upon  such  matters 
will  be  valid  and  binding.^ 

It  is  sometimes  said  that  an  award  may  be  good  in  part 
and  bad  in  part,  but  this  rule  applies  only  to  cases  where 
the  arbitrators  have  exceeded  their  powers  and  passed 
upon  matters  not  submitted,  and  not  affecting  the  matters 
submitted,  or  where  the  defect  is  as  to  some  independent 
and  distinct  matter  forming  no  consideration  for  other 
parts  of  the  award  and  the  settlement  of  which  could  not 
have  contributed  to  induce  the  arbitration.^  But  in  the 
absence  of  a  showing  to  the  contrary  it  will  be  presumed 
that  all  matters  submitted  were  considered  and  passed 
upon.*  No  intendments  will  be  indulged  to  overturn  an 
award,  but  all  reasonable  presumptions  are  in  its  favor.^ 

If  the  statute  provides  that  the  submission  may  be 
made  a  rule  of  a  certain  court  or  class  of  courts,  no  other 
court  has  jurisdiction  to  make  it  a  rule  of  such  court  or  to 
proceed  in  the  matter.^ 

So  it  has  been  held  that  where  the  statute  provides  that 
the  submission  may  be  made  a  rule  of  any  court  of  record, 
it  can  not  be  made  a  rule  in  the  court  of  a  justice  of  the 
peace,  and  that  such  court  has  no  jurisdiction  to  render 
judgment  on  an  award,  because  the  court  is  not  one  of 
record.^  But  this  rule  would  not  hold  good  in  those  states 
in  which  a  court  of  a  justice  of  the  peace  is  held  to  be  a 
court  of  record.^ 

'  Karthaus  v.  Ferrer,  1  Pet.  222.        '  Young  v.  Kinney,  48  Vt.  22. 

•'  Muldrow  V.  Norris,  12  Cal.  331  ;  White  v.  Arthur,  59  Cal.  33 ;  Sabin 
V.  Angell,  44  Vt.  523;  McCullough  v.  McCullough,  12  Ind.  487. 

*  Hadaway  v.  Kelly,  78  111.  286 ;  Darst  v.  Collier,  86  111.  96. 

^  Russell  I'.  Smith,  87  Ind.  457 ;  Dolph  v.  Clemens,  4  Wis.  181 ;  Slocum 
V.  Damon,  1  Pinney  (Wis.),  520;  Bash  v.  Christian,  77  Ind.  290;  Lutz  v. 
Linthicum,  8  Pet.  165. 

fi  Richards  I'.  Reed,  39  Ind.  330. 

'  Richards  r.  Reed,  39  Ind.  330 ;  Hollingsworth  v.  Stone,  90  Ind.  244. 

®  Ante,  sees.  6,  7. 

37 


578        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

If  the  submission  provides  that  it  be  made  a  rule  of  a 
court  not  having  jurisdiction  of  the  subject-matter,  or  that 
the  award  be  entered  as  the  judgment  of  such  a  court,  the 
whole  proceeding  is  void,  and  neither  the  arbitrators  nor 
the  court  have  jurisdiction.^ 

And  where  the  statute  has  not  been  substantially  fol- 
lowed in  submitting  the  subject-matter  to  arbitration,  the 
court  obtains  no  jurisdiction,  and  a  judgment  rendered  on 
the  award  is  void,  although  the  submission  may  be  suffi- 
cient as  a  common  law  submission  and  the  award  valid 
and  binding  on  the  parties  as  a  common  law  award.^ 

Usually,  a  confirmation  by  the  court  of  a  statutory 
award  is  required  before  a  judgment  can  be  rendered 
thereon,  and  under  such  a  statute  a  judgment  rendered 
on  the  award  without  such  confirmation  is  invalid.^  Nor 
is  the  award  enforcible  unless  confirmed  by  the  court.* 
But  the  parties  may  waive  the  confirmation  and  consent 
that  judgment  may  be  rendered  without  it,  and  such  judg- 
ment will  be  valid.® 

Notice  of  the  time  and  place  of  an  application  for  the 
confirmation  of  the  award  is  necessary.^  But  the  notice 
may  be  waived.^ 

The  statutes  of  the  several  states  diflTer  as  to  the  kind 
of  publication  or  notice  of  the  making  of  the  award  or 
the  filing  of  the  same  in  court.  But  whatever  the  require- 
ment of  the  statute  may  be  as  to  notice  or  publication,  it 
must  be  complied  with.^  But  the  required  notice  or  pub- 
lication may  be  waived.^ 

1  Williams  v.  Walton,  9  Cal.  143. 

=>  Kreiss  v.  Hotaling,  96  Cal.  617  ;  31  Pac.  Rep.  740 ;  Allen  v.  Chase,  3 
Wis.  249  ;  Fairchild  v.  Doten,  42  Cal.  125. 

3  Healy  v.  Isaacs,  73  Ind.  226.  *  Bash  v.  Van  Osdol,  75  Ind.  186. 

*  Lovell  V.  Wheaton,  11  Minn.  92. 

fi  Brace  v.  Stacy,  56  Wis.  148  ;  14  N.  W.  Rep.  51  ,  Springfield  &  S.  Ry. 
Co.  V.  Calkins,  90  Mo.  538 ;  3  S.  W.  Rep.  82. 

'  Brace  v.  Stacy,  56  Wis.  148 ;  14  N.  W.  Rep.  51  ;  Matthews  v.  Miller, 
25  AV.  Va.  817. 

«  Russell  V.  Clark,  60  Wis.  284  ;  18  N.  W.  Rep.  844 ;  Flatter  v.  McDer- 
mott,  15  Ind.  389 ;  Coulter  v.  Coulter,  81  Ind.  542. 

8  Coulter  V.  Coulter,  81  Ind.  542. 


ARBITRATION.  579 

Usually,  statutes  allow  an  award  to  be  made  by  a  ma- 
jority of  the  arbitrators,  where  the  parties  do  not  provide 
to  the  contrary  in  the  submission.^  But  it  is  held  other- 
wise as  to  a  common  law  arbitration.^ 

And  where  an  award  by  a  majority  is  authorized,  it  will 
be  void  if  one  of  the  arbitrators  is  not  notified  of  the 
hearing  and  given  an  opportunity  to  be  present,  and  is 
not  in  fact  present.^ 

Where  an  umpire  is  provided  for  and  appointed,  such 
umpire  and  one  of  the  arbitrators,  where  there  are  two 
arbitrators,  may  make  the  award.*  An  award  by  less  than 
the  whole  number  of  arbitrators  is  invalid  where  the  sub- 
mission requires  that  it  shall  be  concurred  in  by  all.* 

There  is  some  diftereiice  of  opinion  in  the  decided  cases 
as  to  the  eft'ect  of  a  submission  to  arbitration  of  matters 
involved  in  an  action  pending  in  court.  Where  the  submis- 
sion is  a  statutory  one  in  which  the  award  is  to  be  returned 
into  court  and  made  the  foundation  of  a  judgment,  and 
the  court  designated  is  the  one  in  which  the  action  is 
pending,  the  action  is  suspended  by  such  submission  until 
the  award  is  made,  when  the  judgment  should  be  rendered 
on  such  award  in  lieu  of  a  decision  of  the  court  or  verdict 
of  a  jury.®  And  it  is  held,  generally,  that  a  submission  of  a 
cause  pending  in  a  court,  to  arbitration,  operates  as  a  dis- 
continuance of  the  action  and  deprives  the  court  of  juris- 
diction.^   But  the  mere  submission  does  not  bar  the  action, 

'  Buxton  V.  Howard,  38  Ind.  109  ;  Doyle  v.  Pattersou,  84  Va.  800 ;  6  S. 
E.  Rep.  138. 

'  Baker  v.  Farmbrough,  43  Ind.  240;  Hubbard  v.  Great  Falls  Mfg.  Co., 
80  Me.  39  ;  12  Atl.  Rep.  878 ;  Leavitt  v.  Windsor  Land  &  In.  Co.,  54  Fed. 
Rep.  439;  4  C.  C.  A.  Rep.  425;  Byard  v.  Harkrider,  108  Ind.  376;  9  N. 
E.  Rep.  294;  Patterson  v.  Leavitt,  4  Conn.  50;  10  Am.  Dec.  98;  Green 
V.  Miller,  6  Johns.  39 ;  5  Am.  Dec.  184. 

'  Doherty  v.  Doherty,  148  Mass.  367 ;  19  N.  E.  Rep.  352 ;  Kent  v. 
French,  76  la.  187;  40  N.  W.  Rep.  713. 

*  Stiringer  v.  Toy,  33  W.  Va.  86;  10  S.  E.  Rep.  26. 

*  Weaver  r.  Powel,  148  Pa.  St.  372  ;  23  Atl.  Rep.  1070. 

*  Grayson  v.  Meredith,  17  Ind.  357  ;  McCarthy  v.  Mack,  145  Mass.  471 ; 
14  N.  E.  Rep.  635. 

'  Gunter  v.  Sanchez,  1  Cal.  45;  Draghicevich  v.  Vulicevich,  76  Cal. 
378;  18  Pac.  Rep.  406;  MuCkey  v.  Pierce,  3  Wis.  307;  Dolph  r.  Clemens, 


580     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

and  if  the  submission  be  revoked,  suit  ma}'  again  be  main- 
tained.' 

The  parties  may  provide  in  the  submission  that  the  same 
shall  cause  a  suspension,  and  not  a  discontinuance,  of  the 
action.^  And  under  statutes  in  some  of  the  states  it  is 
held  that  the  submission  does  not  work  a  discontinuance 
of  the  action.^ 

A  mere  agreement,  made  in  advance,  that  matters  of 
difference  that  may  arise  between  the  parties  shall  be  sub- 
mitted to  arbitration,  and  an  award  thereunder  shall  be 
binding  upon  the  parties,  will  not  deprive  the  courts  of 
jurisdiction.* 

In  order  to  give  a  court  jurisdiction  of  the  parties,  and 
of  the  subject-matter,  where  no  action  is  pending,  and  to 
authorize  it  to  render  judgment  on  the  award,  the  stat- 
utory provisions  by  which  the  matter  is  authorized  to  be 
so  adjudicated  must  be  substantially  complied  with.* 

In  some  of  the  cases  it  is  held  that  the  proceeding  is  one 
in  derogation  of  the  common  law,  and  that  therefore  the 
statute  must  be  strictly  complied  with.*^  None  of  the  re- 
quirements of  the  statute  can  be  dispensed  with  so  far  as 
they  affect  the  submission.^  An  appeal  may  be  taken  from 
a  judgment  of  the  court  on  an  award  of  arbitrators.^ 

4  Wis.  181 ;  Bigelow  v.  Goes,  5  Wis.  421  ;  Grosvenor  v.  Hunt,  11  How.  Pr. 
355;  Buell  v.  Dewey,  22  How.  Pr.  342;  McNulty  r.  Solley,  66  How.  Pr. 
147. 

1  Muckey  v.  Pierce,  3  Wis.  307  ;  Buel  v.  Dewey,  22  How.  Pr.  342. 

'  Ensign'u  St.  Louis  &  S.  F.  Ry.  Co.,  62  How.  Pr.  123. 

^  Hunsden  v.  Churchill,  20  Minn.  408. 

*  Dugan  V.  Thomas,  79  Mo.  221  ;  9  At.  Rep.  354;  Allegre  v.  Maryland 
Ins.  Co.,  6  Harris  &  Johns.  (Md.)  408;  14  Am.  Dec.  289;  March  v.  East- 
ern R.  Co.,  40  N.  H.  548;  77  Am.  Dec.  732;  Pearl  v.  Harris,  121  Mass. 
390;  Old  Saucelito  L.  &  D.  D.  Co.  v.  Commercial  Co.,  66  Cal.  253;  5  Pac. 
Rep.  232;  Holmes  v.  Richet,  56  Cal.  307;  38  Am.  Rep.  54. 

*  Ryan  v.  Dougherty,  30  Cal.  219;  Kettleman  v  Treadway,  65  Cal.  505; 
4  Pac.  Rep.  506 ;  Pieratt  v.  Kennedy,  43  Cal.  393;  Fairchild  v.  Doten,  42 
Cal.  125 ;  Heslep  v.  City  of  San  Francisco,  4  Cal.  1. 

6  Steel  V.  Steel,  1  Nev.  27. 

'  Hamilton  v.  Hamilton,  27  111.  158  ;  Barney  v.  Flower,  27  Minn.  403  ; 
7  N.  W.  Rep.  823. 
8  Fairchild  v.  Doten,  42  Cal.  125. 


I 


NE   EXEAT   AND   ARREST    AND   BAIL.  581 

Provision  is  made  in  some  of  the  states  for  a  reference 
of  a  pending  action  to  referees.  Under  such  statutes  the 
report  of  the  referee  is  essentially  the  same  as  the  award 
of  arbitrators/ 

Arbitrators  have  jurisdiction  of  the  law,  and  of  the 
facts,  under  a  general  submission,^ 

A  judgment  on  an  award  has  the  same  force  and  effect 
as  one  rendered  upon  a  trial  of  a  cause  in  court.^  If  an 
arbitrator  is  interested  in  the  matter  in  controversy  or  not 
disinterested  for  other  reasons,  and  this  is  unknown  to  the 
parties,  or  either  of  them,  the  award  will  be  invalid.*  But 
such  objection  may  be  waived,  and,  if  the  parties  consent 
that  such  interested  party  may  act,  an  award  made  by  him 
will  be  upheld.* 

In  some  of  the  states  it  is  held  that  an  arbitrator  must 
be  sworn  or  his  award  will  be  invalid,  unless  the  oath  is 
waived  by  the  parties.^  This  is  usually  controlled  by  stat- 
ute, in  case  of  statutory  arbitrations,  and  if  the  statute  re- 
quires that  the  arbitrators  be  sworn,  its  provisions  must  be 
followed  in  this  as  in  all  other  matters.  But  it  is  a  re- 
quirement that  may  be  waived  by  the  parties.^  But  gen- 
erally it  is  held  that  the  taking  of  the  oath  is  not  jurisdic- 
tional, and  that  the  failure  to  take  it  does  not  render  the 
proceeding  wholly  void.^ 

78.    Ne    EXEAT    AND   ARREST   AND  BAIL. The    Writ    716    CXeat 

regno,  or,  in  this  country,  ne  exeat  republica,  is  a  writ  in 
equity  issued  to  restrain  a  defendant  from  quitting  the 
state  until   bail    is  given   to   perform  the  decree  of  the 

'  Grayson  v.  Guild,  4  Cal.  122. 

"  Ormsby  v.  Blakewell,  7  Ohio,  99 ;  Ruckman  v.  Ransom,  23  N.  J.  Eq. 
118;  United  States  v.  Farragut,  22  Wall.  406 ;  Boston  Water  Power  Co. 
V.  Gray,  6  Met.  131 ;  Johnson  v.  Noble,  13  N,  H.  286 ;  38  Am.  Dec.  485; 
Bigelow  V.  Newell,  27  Mass.  348. 

'  Johnston  v.  Paul,  23  Minn.  46. 

*  Connor  v.  Simpson,  7  Atl.  Rep.  161 ;  Baltimore  &  O.  R.  Co.  v.  Canton 
Co.,  70  Md.  405;   17  Atl.  Rep.  394. 

*  Inslee  v.  Flagg,  2  Butcher  (N.  Jer.)  368  ;  69  Am.  Dec.  580;  Combe  v. 
Little,  3  Green  Ch.  310;  40  Am.  Dec.  207. 

«  Hill  V.  Taylor,  15  Wis.  190;  Woodrow  v.  O'Connor,  28  Vt.  776. 
'  Elmendorf  v.  Harris,  35  Am.  Dec.  592,  note. 


582      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

court.^  And  as  the  writ  is  designed  to  procure  bail  upon 
giving  security  to  answer  the  bill,  where  a  discovery  is 
necessary,  and  to  abide  the  order  and  decree  of  the  court, 
and  to  be  amenable  to  the  process  issued  to  enforce  the 
same,  or  in  such  other  form  as  may  be  provided  by  statute, 
he  is  entitled  to  his  discharge.*  But  the  writ  has  not  been 
confined  wholly  to  equitable  remedies,  but  has  been  ex- 
tended to  cases  of  alimony  decreed  to  a  wife,  and  cases  of 
account  on  which  a  balance  is  admitted  by  the  defendant, 
but  a  larger  claim  is  insisted  on  by  the  creditor.^ 

The  demand  for  which  the  writ  will  issue  must  be  cer- 
tain in  its  nature,  and  actually  payable,  and  not  contin- 
gent or  of  an  unliquidated  nature,  or  in  the  nature  of 
damages.* 

1  Anderson's  Die.  of  Law,  433;  Adams'  Eq.  360;  Story's  Eq.  Jur.,  sees. 
1464  et  seq.;  16  Am.  &  Eng.  Enc.  of  Law,  375 ;  Gibert  v.  Colt,  1  Hopk. 
Ch.  (N.  Y.)  496;  14  Am.  Dec!  557,  560,  note ;  Moore  v.  Valda,  151  Mass. 
363;  23  N.  E.  Rep.  1102;  Rev.  Stat.  U.  S.,  sec.  717 ;  Lewis  v.  Shainwald, 
48  Fed.  Rep.  492;  Cable  v.  Alvora,  27  Ohio  St.  654;  Forrest  v.  Forrest,  5 
How.  Pr.  125;  De  Rivafinoli  r.  Corsetti,  4  Paige  Ch.  264;  25  Am.  Dec. 
532;  Mitchell  v.  Bunch,  2  Paige  Ch.  606;  22  Am.  Dec.  669;  Bonesteel  r. 
Bonesteel,  28  Wis.  245;  Dean  v.  Smith,  23  Wis.  483;  99  Am.  Dec.  198; 
Rice  V.  Hale,  59  Mass.  238. 

"The  writ  of  ne  exeat  is  a  writ  to  restrain  a  person  from  quitting  the 
kingdom  without  the  king's  license  or  the  leave  of  the  court.  It  is  a 
high  prerogative  writ,  and  was  originally  applicable  to  purposes  of  state 
only,  but  is  now  extended  to  private  transactions,  and  operates  in  tlie 
nature  of  equitable  bail.  It  is  grantable  wherever  a  present  equitable 
debt  is  owing,  which,  if  due  at  law,  would  warrant  an  arrest,  and  also  to 
enforce  arrears  of  alimony  in  aid  of  the  Spiritual  Court,  in  respect  of  the 
inability  of  that  court  to  require  bail.  It  may  be  granted  where  there 
is  a  concurrent  jurisdiction  at  law,  e.  g.,  on  bills  for  an  account,  or  for 
specific  performance ;  but  not  where  the  claim  is  of  legal  cognizance 
alone."     Adams'  Eq.  360;  Williams  v.  Williams,  3  N.  J.  Eq.  130. 

2  Mitchell  V.  Bunch,  2  Paige  Ch.  606 ;  22  Am.  Dec.  669. 

^  2  Story's  Eq.  Jur.,  sec.  1471 ;  16  Am.  &  Eng.  Enc.  of  Law,  379;  Gibert 
V.  Colt,  14  Am.  Dec.  560,  note;  Yule  v.  Yule,  10  N.  J.  Eq.  138;  Bushnell 
V.  Bushnell,  15  Barb.  399. 

*  Story's  Eq.  Jur.,  sec.  1474;  Adams  Eq.,  8th  Ed.,  p.  360,  note;  16  Am. 
&  Eng.  Enc.  of  Law,  375;  Rhodes  v.  Cousins,  6  Rand.  (Va.)  188;  18  Am. 
Dec.  715 ;  Rice  v.  Hale,  59  Mass.  238. 

"A  writ  of  ne  exeat  can  not  be  granted  unless,  1st,  there  be  a  precise 
amount  of  debt  due ;   2d,  it  be  on  an  equitable  demand,  on  which  the 


NE    EXEAT   AND    ARREST    AND    BAIL.  583 

The  writ  has  become  of  less  consequence  than  formerly 
by  reason  of  constitutional  provisions  forbidding  imprison- 
ment for  debt.^  But  it  is  still  maintained  notwithstanding 
these  constitutional  inhibitions,  either  as  a  distinctive  writ 
or  by  statutory  proceedings  of  arrest  and  bail,  which  are 
made  applicable  to  both  actions  at  law  and  proceedings  in 
equity.^ 

It  is  generally  held  that  constitutional  provisions  against' 
imprisonment  for  debt  do  not  prevent  such  imprisonment 
in  cases  of  fraud  or  for  torts.^  And  some  of  the  cases 
hold,  without  qualification,  that  the  constitutional  pro- 
visions against  imprisonment  for  debt  are  not  applicable 
to  imprisonment  under  writs  of  ne  exeat.*  But  the  remedy 
when  provided  by  statute  is  usually  confined  to  cases  of 
fraud,  either  in  the  making  of  the  contract  or  incurring 
the  liability,  or  in  concealing  or  removing  property  sub- 
ject to  execution,  or  to  causes  of  action  involving  a  breach 
of  some  fiduciary  obligation,  or  for  tort,  and  the  like,  the 
causes  for  which  the  writ  may  issue,  or  the  defendant  be 
arrested,  in  a  proceeding  for  arrest  and  bail  or  ne  exeat  be- 
ing different  in  the  different  states.^ 

And  statutes  authorizing  imprisonment  for  such  causes 

plaintiflf  can  not  sue  at- law,  except  in  cases  o£  account,  and  a  few  others 
of  concurrent  jurisdiction ;  and  3d,  the  defendant  be  about  to  quit  the 
country,  proved  by  affidavits  as  positive  as  those  required  to  hold  to  bail 
at  law."  Adams  Eq.,  8th  Ed.,  p.  360,  note  ;  Rhodes  v.  Cousins,  6  Rand. 
188;  18  Am.  Dec.  715. 

'  16  Am.  &  Eng.  Enc.  of  Law,  375. 

'  Gibert  v.  Colt,  14  Am.  Dec.  561,  note;  Cable  v.  Alvord,  27  Ohio  St. 
654;  Dean  v.  Smith,  23  Wis.  483;  99  Am.  Dec.  198. 

=*  Powers  V.  Davenport,  101  N.  Car.  286;  7  S.  E.  Rep.  747;  Baker  v. 
State,  109  Ind.  47;  9  N.  E.  Rep.  711 ;  McKindley  v.  Rising,  28  111.  337; 
Malcolm  v.  Andrews,  68  111.  100. 

♦  Dean  v.  Smith,  23  Wis.  483;  99  Am.  Dec.  198. 

*  Swift  V.  The  State,  63  Ind.  81 ;  Cooper  v.  Hart,  18  Atl.  Rep.  122;  Wilbur 
V.  Allen,  5  N.  Y.  Supl.  746 ;  Valentine  r.  Richardt,  6  X.  Y.  Supl.  197 ;  Pow- 
ers v.  Davenport,  101  N.  Car.  286;  7  S.  E.  Rep.  747;  Bridgers  v.  Taylor, 
102  N.  Car.  86;  8  S.  E.  Rep.  893;  Baker  v.  State,  109  Ind.  47;  9  N.  E. 
Rep.  711;  Warner  v.  Bates,  75  Wis.  278;  43  N.  W.  Rep.  957;  Hood  v. 
Sudderth,  111  N.  Car.  215 ;  16  S.  E.  Rep.  397 ;  Malcolm  v.  Andrews,  68 
111.  100. 


584      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

are  upheld  as  not  in  violation  of  the  constitution.^  But 
notwithstanding  the  constitutional  provisions  against  im- 
prisonment for  debt,  the  statutes  of  tlie  several  states  have 
increased,  rather  than  diminished,  the  classes  of  remedies 
in  which  an  arrest  of  the  defendant  may  be  had,  either 
under  the  writ  of  ne  exeat  or  arrest  and  bail.^ 

The  power  of  the  federal  conrts  and  judges  to  issue  the 
writ  is  limited  by  statute.^  The  power  to  issue  such  writs 
is  usually  given  to  the  judges  or  chancellors  as  well  as  to 
the  courts.  And  sometimes  the  power  is  vested  by  stat- 
ute in  masters  in  chancery.* 

Very  similar  to  this  equitable  remedy  is  that  of  arrest 
and  bail,  except  that  the  latter  is  applicable  to  common 
law  liabilities.  Their  objects  and  the  purposes  for  which 
they  may  be  maintained,  as  well  as  the  principles  by  which 
they  are  controlled  and  regulated,  are  so  nearly  alike  that 
they  may  very  properly  be  considered  together,  although 
the  means  by  which  the  creditor  is  secured  is  difierent  nn- 
der  this  and  under  the  process  of  a  common  law  court. 
The  writ  of  ne  exeat  acts  directly  upon  the  person  of  the 
defendant,  but  its  object  is  to  coerce  him  to  comply  with 
the  decree  of  the  court  when  rendered.^ 

Originally  the  common  law  remedy  of  arrest  and  bail 
was  confined  to  civil  injuries  accompanied  by  force.*  But 
the  remedy  has  been  so  changed  and  modified  by  statutes, 
both  in  this  country  and  in  England,  that  the  old  writ  of 
capias,  in  either  of  its  forms,  whether  to  compel  the  ap- 

1  Baker  v.  State,  109  Ind.  47 ;  9  N.  E.  Eep.  711 ;  In  re  Milburn,  59  Wis. 
24;  17  N.  W.  Rep.  965. 

^  McGee  v.  McGee,  8  Ga.  295 ;  52  Am.  Dec.  407. 

^  Rev.  Stat.  U.  S.,  sees.  716,  717;  Shainwald  v.  Lewis,  46  Fed.  Rep.  839. 

*  Bassett  v.  Bratton,  86  111.  152. 

'  Some  of  the  differences  between  ne  exeat  and  the  common  law  rem- 
edy of  arrest  and  bail  will  be  found  pointed  out  in  Forrest  v.  Forrest,  5 
How.  Pr.  125,  131,  in  which  case  it  is  maintained,  in  opposition  to  the 
decisions  in  other  states,  that  the  code  provisions  authorizing  and  lim- 
iting arrest  and  bail  have  not  superseded  and  abolished  the  writ.  See 
also  to  the  same  effect,  Busbnell  r.  Bushnell,  7  How.  Pr.  389;  15  Barb. 
399.  See  to  the  contrary,  Ex  parte  Harker,  49  Cal.  465;  Cable  v.  Alvord, 
27  Ohio  St.  654,  667. 

«  Foulkes'  Ac.  in  Sup.  Court,  124;  3  Blk.  Comm.  281. 


NE    EXEAT    AND    ARREST    AND    BAIL.  585 

pearance  of  the  defendant,  or  to  compel  his  imprisonment 
until  the  creditor's  debt  is  satisfied,  is  no  longer  recogniz- 
able.i 

In  some  of  the  states  the  writ  has  been  replaced  by 
statutory  proceedings  for  arrest  and  bail,  sometimes  under 
the  old  name  of  ne  exeat,  and  sometimes  under  the  name 
of  arrest  and  bail.  And  in  some  the  writ  of  ne  exeat  is 
maintained  and  allowed,  under  statutory  regulations,  in 
certain  classes  of  cases,  and  the  statutory  remedy  of  arrest 
and  bail  is  allowed  in  certain  other  cases.  Indeed,  the 
proceeding  by  writ  of  ne  exeat  has  become  almost  entirely 
statutory,^  And  in  some  of  the  states  the  writ  has  been 
abolished  and  a  purely  statutory  proceeding  substituted 
for  it.3 

Code  provisions,  by  which  the  distinctions  between  ac- 
tions at  law  and  suits  in  equity  are  abolished,  and  the 
civil  action  of  such  codes  made  to  include  both,  do  not, 
of  themselves,  deprive  the  courts  of  the  power  and  juris- 
diction exercised  by  courts  of  chancery  in  proceedings  of 
this  kind.^ 

The  proceeding  when  founded  upon  fraud  is  very  sim- 
ilar to,  and  rests  upon  like  principles  as,  the  proceeding  for 
attachment  growing  out  of  the  fraudulent  attempt  or  in- 
tent to  remove  property  out  of  the  jurisdiction  of  the 
court,  and  thus  deprive  the  creditor  of  his  remedy  against 
such  property  when  his  judgment  is  obtained.* 

A  complaint  or  petition  must  be  filed  showing  such  a 
cause  of  action  as  will  authorize  the  issuance  of  the  writ.^ 

'  Foulkes'  Ac.  in  Sup.  Ct.  124,  203 ;  1  Am.  &  Eng.  Enc.  of  Law,  719, 
720. 

»  2  Work's  Ind.  Prac.  &  PI.,  sees.  1292,  1453. 

^  Ex  parte  Harker,  49  Cal.  465;  Gibert  v.  Colt,  14  Am.  Dec.  561,  note; 
Cable  ('.  Alvord,  27  Ohio  St.  654,  667. 

*  In  re  Milburn,  59  Wis.  24;  17  N.  W.  Rep.  965;  Bushnell  v.  Bushnell, 
15  Barb.  399. 

*  Fitzgerald  v.  Gray,  59  Ind.  254. 

'  Saratoga  Gas,  etc.,  Co.  v.  Hazard,  7  N.  Y.  Supl.  844;  Hillis  v.  Bleck- 
ert,  6  N.  Y.  Supl.  405;  Bartlett  r.  Sutornis,  6  N.  Y.  Supl.  406;  9  N.  Y. 
Supl.  2;  People  v.  Snaith,  10  N.  Y.  Supl.  589;  Hanson  v.  Langau,  9  N.Y. 
Supl.  625;  Moffat  v.  Fulton,  9  N.  Y.  Supl.  771 ;  Ex  parte  Cohen,  6  Cal. 
319. 


I 


586       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

And  an  affidavit  showing  the  fraudulent  acts  or  intention 
of  the  defendant,  or  other  grounds  which  authorize  the 
commencement  of  the  proceeding,  must  be  made  and  filed,^ 
and  an  undertaking,  such  as  the  statute  requires,  must  be 
given  before  the  writ  can  be  properly  issued.^ 

But  in  some  of  the  states  proceedings  for  the  writ  of  ?'e 
exeat  is  allowed  to  be  instituted  as  a  separate  and  distinct 
proceeding  before  the  debt  matures,  while  that  of  the 
statutory  arrest  and  bail  is  made  auxiliary  to  an  action  for 
the  recovery  of  the  debt  as  in  case  of  attachment. 

The  affidavit  must  be  positive  in  its  terms  and  not  on 
information  and  belief,^  and  must  show  personal  knowl- 
edge of  the  facts  necessary  to  authorize  the  issuance  of 
the  writ,  or  state  circumstances  from  which  the  facts 
must  necessarily  be  deduced,  or  the  proceeding  will  be 
void.^ 

It  is  held  to  be  sufficient  to  allege  the  facts  on  informa- 
tion and  belief  under  some  circumstances  of  excuse  to  be 
alleged  in  the  affidavit.^  And  in  some  cases  it  is  held, 
generally,  that  the  affidavit  may  be  on  information  and 
belief.®  The  affidavit  must  show  the  venue  or  it  will  be 
void  and  confer  no  jurisdiction.^ 

If  the  application  is  based  upon  the  fraudulent  intent 

'  Ramsey  v.  Foy,  10  Ind.  493;  Fitzgerald  v.  Gray,  59  Ind.  254 ;  1  Am. 
&  Eng.  Enc.  of  Law,  721 ;  Gibert  v.  Colt,  14  Am.  Dec.  562,  note;  Wilbur 
V.  Allen,  5  N.  Y.  Supl.  746;  Valentine  v.  Richardt,  6  N.  Y.  Supl.  197; 
People  V.  Snaith,  10  N.  Y.  Supl.  589 ;  In  re  Vanamee,  8  N.  Y.  Supl.  219 ; 
In  re  Vinicb,  86  Cal.  70;  26  Pac.  Rep.  528;  Bonesteel  v.  Bonesteel,  28 
Wis.  245. 

•^  Ramsey  v.  Foy,  10  Ind.  493;  Fitzgerald  v.  Gray,  59  Ind.  254. 

3  People  V.  Snaith,  10  N.  Y.  Supl.  589 ;  In  re  Vanamee,  8  N.  Y.  Supl. 
219;  Thompson  v.  Best,  4  N.  Y.  Supl.  229;  Martin  v.  Gross,  4  N.  Y.  Supl. 
337;  Markey  v.  Diamond,  20  N.  Y.  Supl.  847;  In  re  Vinich,  86  Cal.  70; 
26  Pac.  Rep.  528;  Whitlock  v.  Roth,  5  How.  Pr.  143;  McGilvery  v.  More- 
head,  2  Cal.  607. 

*  Marble  v.  Curran,  63  Mich.  283 ;  29  N.  W.  Rep.  725 ;  De  Long  v. 
Briggs,  47  Mich.  625;  11  N.  W.  Rep.  412;  Thompson  v.  Best,  4  N.  Y. 
Supl.  229. 

*  City  Bank  v.  Lumly,  28  How.  Pr.  397;  Crandall  v.  Bryan,  15  How. 
Pr.  48. 

«  Matoon  v.  Eder,  6  Cal.  58. 

'  Saril  V.  Payne,  4  N.  Y.  Supl.  897. 


NE    EXEAT    AND    ARREST    AND    BAIL.  587 

to  remove  property  out  of  the  jurisdiction  of  the  court, 
the  property  must  be  shown  to  be  subject  to  execution.' 

In  equity  the  proceeding  may  be  commenced  at  any 
stage  of  the  cause,  but  only  on  a  bill  filed. ^  The  applica- 
tion may  be  made  by  motion  or  petition,  and  must  be 
supported  by  affidavit.^  It  is  held  in  some  of  the  cases, 
however,  that  the  writ  may  issue  upon  affidavit  before 
any  action  is  commenced  by  the  filing  of  a  bill  or  com-' 
plaint.* 

The  writ  has  been  held  not  to  be  a  mere  provisional 
remedy,  in  the  sense  that  it  can  only  be  issued  pending 
the  suit,  and  must  expire  on  the  rendition  of  the  judg- 
ment, but  that  its  issuance  may  be  provided  for  in  the 
final  decree,  and  continues  until  the  judgment  is  satisfied 
or  security  given .^ 

Statutes  authorizing  the  proceeding,  being  in  restraint 
of  liberty,  must  be  strictlj^  complied  with.''  Under  the 
statutes  the  proceeding  is  not  generally  confined  to  equi- 
table actions,^  and  is  extended  to  debts  not  yet  due.® 

A  defective  affidavit  or  petition  for  the  writ  may  be 
amended.''  So  of  a  defective  undertaking.^  Therefore  a 
defect  in  the  petition  or  affidavit  will  not  afiiect  the  juris- 
diction of  the  court  or  render  the  proceeding  wholly  void 
where  there  are  facts  alleged  tending  to  establish  a  cause 
for  issuing  the  writ.  Such  a  showing,  although  insufii- 
cient  if  attacked  directly,  calls  upon  the  court  or  judge  to 
decide  whether  the  facts  alleged  are  sufiicient  or  not,  and 
his  decision  can  not  be  collaterally  attacked.'     But  it  is 

'  Jones  V.  Kennicott,  83  111.  484. 

^  16  Am.  &  Eng.  Enc.  of  Law,  379 ;   Lewis  v.  Sbainwald,  48  Fed.  Rep. 
492. 
'  16  Am.  &  Eng.  Enc.  of  Law,  380;  Bassett  v.  Bratton,  86  111.  152. 

*  Bushnell  v.  Bushnell,  7  How.  Pr.  389 ;   Clark  v.  Clark,  26  Atl.  Rep. 
1012. 

*  Lewis  V.  Shainwald,  48  Fed.  Rep.  492. 

*  Ramsey  v.  Foy,  10  Ind.  493. 

'  Louderback  v.  Rosengrant,  4  Ind.  563 ;  Bassett  v.  Bratton,  86  111.  152 ; 
Fisher  v.  Stone,  3  Scam.  (111.)  68;  McBride  v.  Langan,  10  N.  Y.  Supl.  554. 

*  Fitzgerald  v.  Gray,  59  Ind.  254. 

»  Bassett  v.  Bratton,  86  111.  152;  Fisher  r.  Stone,  3  Scam.  (111.)  68;  Dusy 
«.  Helm,  59  Cal.  188. 


1 


588      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

held  that  there  can  be  no  amendment  of  the  affidavit 
where  it  is  void  and  not  merely  defective.^  And  this  is  in 
conformity  to  the  rule  generally  applied  in  cases  of  attach- 
ment and  other  extraordinary  remedies.^ 

The  right  to  the  issuance  of  the  writ  depends  upon  the 
presence  of  the  defendant  within  the  jurisdiction  and  not 
upon  his  residence  or  the  place  w^here  the  cause  of  action 
arose,  nor,  necessarily,  upon  the  presence  of  property 
within  the  jurisdiction  of  the  court.^  Nor  is  it  necessary 
that  the  defendant  should  be  actually  wnthin  the  state 
when  the  application  for  the  writ  is  made.*  But  under 
some  of  the  statutory  remedies  of  this  character  a  defend- 
ant can  be  arrested  only  in  the  county  of  his  residence.^ 

A  writ  of  ne  exeat  will  not  be  allowed  under  the  chan- 
cery practice  where  there  is  an  adequate  remedy  at  law.^ 
And  it  is  usually  held  that  statutes  authorizing  the  ex- 
traordinary remedy  of  imprisonment  can  not  be  enforced 
where  the  creditor  can  recover  by  the  ordinary  means  pro- 
vided by  law.'' 

79.  Injunctions.  The  remedy  of  injunction  is  a  purely 
equitable  one,  but,  like  almost  all  other  remedies,  legal  or 
equitable,  it  has  become,  to  a  large  extent,  statutory,  in 
the  sense  that  the  power  to  issue  the  writ  is,  in  most  of 
the  states  expressly  conferred,  and  the  exercise  of  the 
power  directly  limited,  by  statute.  But,  notwithstanding 
these  statutory  provisions  and  regulations,  the  jurisdiction 
to  issue  writs  of  injunction,  by  courts  of  original  juris- 
diction, remains  very  much  as  it  was  under  the  old  equity 

1  Saril  V.  Payne,  4  N.  Y.  Supl.  897.  *  Ante,  sec.  74,  p.  544. 

3  Gibert  v.  Colt,  1  Hopk.  Ch.  (N.  Y.)  496;  14  Am.  Dec.  557,  560,  note; 
Powers  V.  Davenport,  101  N.  Car.  286 ;  7  S.  E.  Hep.  747 ;  Enos  v.  Hunter, 
4  Gil.  (111.)  212;  Parker  v.  Parker,  12  N.  J.  Eq.  105;  Mitchell  v.  Bunch, 
2  Paige  Ch.  606;  22  Am.  Dec.  669. 

*  Parker  v.  Parker,  12  N.  J.  Eq.  105. 

^  Hatch  V.  Saunders,  66  Mich.  181 ;  33  N.  W.  Rep.  178. 

«  Victor  Scale  Co.  v.  Shurtleff,  81  111.  313 ;  Rhodes  v.  Cousins,  6  Rand. 
188  ;  18  Am.  Dec.  715. 

'  Baker  v.  State,  109  Ind.  47 ;  9  N.  E.  Rep.  711. 


INJUNCTIONS.  589 

practice.^  And  the  combination  of  common  law  and 
equity  jurisdiction  in  the  same  courts,  as  is  done  in  most 
of  the  states,  does  not  change  the  rule.  It  is  the  remedy 
that  controls  and  not  the  court  by  which  it  is  adminis- 
tered.^ 

With  reference  to  appellate  courts  the  state  constitu- 
tions or  statutes  frequently  confer  upon  such  courts  juris- 
diction to  issue  and  determine  writs  of  habeas  corpus,  man- 
damus^ injunction,  quo  warranto,  and  certiorari.  And  some- 
times general  words  are  used,  such  as  "  other  original  and 
remedial  writs,"  in  order,  apparently,  to  vest  in  appellate 
courts  jurisdiction  over  all  such  writs.^ 

The  effect  of  such  and  similar  provisions  will  be  con- 
sidered further  on  in  this  section. 

The  statutes  have  extended,  rather  than  limited,  the 
jurisdiction  of  the  courts  in  affording  injunctive  relief. 
And  the  tendency  of  the  courts  has  been  rather  to  ex- 
tend their  jurisdiction,  in  applying  injunctive  relief, 
where  the  power  is  not  limited  by  express  law.^  This  is 
particularly  noticeable  in  the  decisions  of  some  of  the 
federal  courts  growing  out  of  difficulties  between  employ- 
ers and  employes  resulting  in  "  strikes."  ^ 

The  equity  jurisdiction  of  the  federal  courts  can  not  be 
increased  by  state  laws.^ 

It  is  not  the  intention  to  attempt  to  point  out  here 
the  particular  cases  in  which  injunction  will  lie,  or 
the  particular  grounds  upon  w^hicli  a  court  of  equity 
will  exercise  this  power,  but  to  discuss  the  general 
principles,  only,    upon   which    the  jurisdiction  of  courts 

^  Trustees  of  German,  etc.,  Church  v.  Hoessli,  13  Wis.  348;  Neiser  t'. 
Thomas,  99  Mo.  224;  12  S.  W.  Rep.  725. 

^Bouton  V.  City  of  Brooklyn,  7  How.  Prac.  198,  20-5. 

^  Attorney-General  r.  Railroad  Companies,  35  Wis.  425. 

*  Merced  Mining  Co.  r.  Fremont,  7  Cal.  317;  68  Am.  Dec.  262;  Mur- 
dock  V.  Walker,  152  Pa.  St.  -595;  25  Atl.  Rep.  492. 

^  Coeur  d'Alene  Con.  Mining  Co.  v.  Miners  Union,  51  Fed.  Rep.  260; 
In  re  Higgins,  27  Fed.  Rep.  443 ;  Toledo,  etc.,  Ry.  Co.  v.  Pennsylvania 
Co.,  54  Fed.  Rep.  730,  746;  United  States  v.  Workingmen's  Council,  54 
Fed.  Rep.  994. 

'  Clapp  V.  City  of  Spokane,  53  Fed.  Rep.  515. 


590        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

of  equity  to  issue  the  writ  can  be  maintained.  But 
there  are  certain  classes  of  cases  which  it  is  deemed  best 
to  consider,  separately,  in  this  connection,  as  they  involve 
some  principles  applicable  to  themselves  alone.  These  in- 
clude proceedings  for  the  levy  and  enforcement  of  taxes, 
issuance  and  sale  of  municipal  bonds,  and  other  acts  of 
public  officers,  and  proceedings  in  other  courts,  including 
the  enforcement  of  their  judgments. 

The  remedy,  and  the  extent  to  which  it  may  be  enforced, 
is  so  familiar  to  the  practicing  lawyer  that  a  very  brief 
consideration  of  the  subject,  in  a  work  on  jurisdiction, 
would  seem  to  be  sufficient.  The  jurisdiction  of  a  court 
of  equity  to  afford  relief  by  way  of  injunction  rests,  in 
most  cases,  upon  well  settled  principles  and  clearly  defined 
grounds.  Of  these  may  be  enumerated :  The  prevention 
of  irreparable  injury,^  or  of  a  multiplicity  of  actions,^  to 
prevent  the  infliction  of  an  injury  for  which  the  injured 
party  can  have  no  adequate  remedy  at  law,^  or  where  the 
obligation,  the  subject,  or  foundation,  of  the  action,  arises 
from  a  trust;  or  to  prevent  vexatious  litigation,* 

These  grounds  of  equitable  jurisdiction,  as  well  as  the 
limitations  upon  such  jurisdiction,  have  been  perpetuated 
in  most  of  the  states  by  express  statutory  provisions.^ 

'  Smith  V.  Weldon,  7.S  Ind.  454 ;  Wilson  v.  City  of  Mineral  Point,  39- 
Wis.  160;  Newall  v.  Staffordville,  etc.,  Co.,  13  Atl.  Rep.  270;  Thomas  v. 
Musical,  etc.,  Union,  2  N.  Y.  Supl.  195. 

2  Coeur  d'Alene  Con.  Min.  Co.  v.  Miners'  Union,  51  Fed.  Rep.  260, 
265;  Lewis  v.  Rough,  26  Ind.  398;  Slack  v.  Lawrence  Tp.,  19  Atl.  Rep. 
663;  Shafer  v.  Stull,  32  Neb.  94 ;  48  N.  W.  Rep.  882. 

='Bronk  v.  Riley,  2  N.  Y.  Supl.  266;  Sedalia  Brewing  Co.  v.  Sedalia 
Water-Works  Co.,  34  Mo.  App.  49. 

*  Kitts  V.  Williams,  89  Ind.  95. 

^  As  a  sample  of  this  kind  of  legislation,  the  code  of  California  may 
be  cited,  which  provides: 

"  Except  where  otherwise  provided  by  this  title,  a  final  injunction 
may  be  granted  to  prevent  the  breach  of  an  obligation  existing  in  favor 
of  the  applicant: 

"  1.  Where  pecuniary  compensation  would  not  afford  adequate  relief ; 

"  2.  Where  it  would  be  extremely  difficult  to  ascertain  the  amount  of 
compensation  which  would  afford  adequate  relief ; 

"  3.  Where  the  restraint  is  necessary  to  prevent  a  multiplicity  of 
judicial  proceedings ;  or, 


INJUNCTIONS.  591 

If  the  right  to  an  injunction  depends  upon  a  disputed 
question  of  law,  a  court  of  equity  will  not  grant  a  tem- 
porary writ  until  such  question  is  determined  by  the  proper 
court.^ 

The  most  important  and  familiar  limitation  of  the 
power  of  courts  to  interfere,  by  injunction,  is  that  the 
remedy  can  not  be  resorted  to  where  the  party  seeking 
the  writ  has  an  adequate  remedy  at  law.^ 

And  this  limitation  has  been  carried  into  the  statute  of 
the  United  States.^ 

Therefore,  in  order  to  call  for  the  exercise  of  equitable 
jurisdiction  by  way  of  injunction,  it  must  be  shown, 
affirmatively,  that  the  complainant  has  no  adequate  rem- 
edy at  law.* 

To  determine,  under  this  limitation,  what  will  amount 
to  an  adequate  remedy  at  law,  such  as  will  preclude  the 

"  4.  Where  the  obligation  arises  from  a  trust. 

"An  injunction  can  not  be  granted: 

"  1.  To  stay  a  judicial  proceeding  pending  at  the  commencement  of  the 
action  in  which  the  injunction  is  demanded,  unless  such  restraint  is 
necessary  to  prevent  a  multiplicity  of  such  proceedings ; 

"  2.  To  stay  proceedings  in  a  court  of  the  United  States  ; 

"3.  To  stay  proceedings  in  another  state  upon  a  judgment  of  a  court 
of  that  state ; 

"  4.  To  prevent  the  execution  of  a  public  statute,  by  officers  of  the 
law,  for  the  public  benefit ; 

"  5.  To  prevent  the  breach  of  a  contract,  the  performance  of  which 
would  not  be  specifically  enforced  ; 

"  6.  To  prevent  the  exercise  of  a  public  or  private  office,  in  a  lawful 
manner  by  the  person  in  possession  ; 

"  7.  To  prevent  a  legislative  act  by  a  municipal  corporation." 

Civil  Code  Cal.,  sees.  3422,  3423;  see  also  Thacher  v.  Humble,  67  Ind. 
444. 

1  Delaware,  L.  &  W.  R.  Co.  r.  Central  Stock  Yards,  etc.,  Co.,  43  X.  J. 
Eq.  77 ;  10  Atl.  Rep.  602. 

*  10  Am.  &  Eng.  Enc.  of  Law,  792 ;  Smith  v.  Welden,  73  Ind.  454 ;  Sims 
V.  City  of  Frankfort,  79  Ind.  446 ;  Lenz  v.  Charlton,  23  Wis.  478 ;  Suess 
v.  Noble,  31  Fed.  Rep.  855;  Haskell  v.  Thurston,  80  Me.  129;  13  Atl. 
Rep.  273. 

2  Rev.  Stat.  V.  S.,  sec.  723 ;  Suess  v.  Noble,  31  Fed.  Rep.  855. 

*  St.  Louis,  etc.,  Ry.  Co.  v.  Reynolds,  89  Mo.  146 ;  1  S.  W.  Rep.  208; 
McClung  V.  Livesay,  7  W.  Va.  329;  Poyer  v.  Village  of  Desplaines,  123 
111.  Ill ;  13  N.  E.  Rep.  819. 


592      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

interference  of  a  court  of  equity  by  injunction,  has  been 
the  most  difficult  task  for  the  courts.  It  will  be  found, 
therefore,  that  the  courts  differ  widely  upon  this  question, 
and  that  no  definite  or  precise  rule  can  be  laid  down  on 
the  subject.^ 

In  certain  classes  of  cases,  of  course,  the  question  gives 
rise  to  but  little  difficulty ;  but  in  others,  while  a  remedy 
at  law  exists,  the  question  whether  such  remedy  is  ade- 
quate or  not  must  be  determined,  largely,  by  the  circum- 
stances of  each  case. 

It  is  not  sufficient  to  deprive  the  party  of  the  right  to 
an  injunction  that  he  may  recover  a  judgment  at  law.  If 
it  appears  that  such  a  judgment,  when  recovered,  will  not 
afford  him  adequate  relief,  he  is  still  entitled  to  equitable 
relief.^ 

So  the  solvency  or  insolvency  of  the  party  complained 
against  often  becomes  a  material  factor  in  determining 
whether  a  court  of  equity  has  power  to  interfere  or  not. 
And  it  is  usually  held  that  if  a  judgment  at  law  would  be 
unavailing,  because  of  the  insolvency  of  the  wrongdoer, 
an  injunction  should  issue.^ 

So  if  the  injury  about  to  be  inflicted  is  of  such  a  pecu- 
liar nature,  or  will  affect  such  property,  as  can  not  be  ade- 
quately compensated  for  in  damages,  this  will  entitle  the 
party  to  equitable  relief.* 

A  simple  trespass  committed  by  one  able  to  respond  in 
damages  can  not  be  enjoined.  But  if  the  trespass  is  about 
to  be  committed  under  a  claim  of  right,  and  the  posses- 
sion thus  acquired  may  ripen  into  a  title,  injunction  will 
lie.5 

'  Oliver  v.  Pray,  4  Ohio,  175, 192. 

^  Wilson  V.  City  of  Mineral  Point,  39  Wis.  160;  Troe  v.  Larson,  84  la. 
649;  51  N.  W.  Eep.  179;  Wilson  v.  Hill,  46  N.  J.  Eq.  367;  19  Atl.  Rep. 
1097. 

^  Coeur  d'Alene  Mining  Co.  v.  Miners'  Union,  51  Fed.  Rep.  260  ;  Wil- 
son V.  Hill,  46  N.  J.  Eq.  367;  19  Atl.  Rep.  1097. 

*  Thacher  v.  Humble,  67  Ind.  444  ;  Lutheran,  etc.,  Church  v.  Gristgau, 
34  Wis.  328  ;  Trustees  v.  Hoessli,  13  Wis.  348. 

^  Kyle  V.  Board  of  Commissioners,  94  Ind.  115 ;  City  of  New  Albany 
V.  White,  100  Ind.  206. 


INJUNCTIONS.  593 

So  where  the  entry  is  made  by  an  officer  under  the  order 
of  a  judicial  tribunal,  asserting  the  right  to  make  a  per- 
manent appropriation  of  the  plaintiff's  land,^  or  where  the 
injury  will  be  irreparable,^  or  where  the  injury  threatened 
will  be  continuous  and  constantly  recurring,^  or  work  a 
permanent  injury,*  or  where  a  multiplicity  of  suits  will  l)e 
avoided  by  the  injunction.^ 

So  where  a  lien  upon  real  estate  exists  as  security  and' 
the  security  is  inadequate  the  owner  will,  at  the  in- 
stance of  the  lien-holder,  be  enjoined  from  cutting  tim- 
ber or  doing  other  acts  which  will  still  further  reduce 
the  value  of  the  land.®  So  the  remedy  will  be  applied 
in  favor  of  a  reversioner  to  prevent  waste  by  a  tenant  for 
years.^ 

It  is  not  necessary  that  the  party  should  have  an  ade- 
quate remedy  by  the  ordinary  proceedings  at  law  to  defeat 
his  right  or  deprive  a  court  of  equity  of  jurisdiction.  If 
he  has  an  adequate  remedy  by  any  of  the  extraordinary 
proceedings  at  law,  as  for  example,  by  mandamus,  or  cer- 
tiorari, or  attachment,  he  must  resort  to  such  remedy.^ 

Usually  a  party  can  not  be  protected  by  an  injunction 
when  he  can  recover  damages  at  law  for  the  threatened 
injury  if  inflicted.     But  if  the  injury  is  such  that  just  and 

'  Erwia  r.  Fulk,  9-4  Ind.  235. 

''■  Harris  v.  Township  Board,  22  Mo.  App.  462. 

3  Pence  v.  Garrison,  93  Ind.  345,  349 ;  Ellis  v.  Wren,  84  Ky.  254  ;  1  S. 
W.  Rep.  440;  Troe  v.  Larson,  84  la.  649;  52  N.  W.  Rep.  179;  Lembeck 
V.  Nye,  47  Ohio  St.  336;  24  N.  E.  Rep.  686;  Shafer  v.  Stull,  32  Neb.  94; 
48  N.  W.  Rep.  882. 

♦  Pettigrew  v.  Village  of  Evansville,  25  Wis.  223 ;  3  Am.  Rep.  50 ; 
Richards  v.  Dower,  64  Cal.  62 ;  28  Pac.  Rep.  113. 

^  Nichols  V.  Jones,  19  Fed.  Rep.  855 ;  Ladd  v.  Osborne,  79  la.  93 ;  44 
N.  W.  Rep.  236;    Ellis  v.  Wren,  84  Ky.  254;  1  S.  W.  Rep.  440. 

*  Bunker  v.  Locke,  15  Wis.  635 ;  Fairbank  v.  Cudworth,  33  Wis.  358. 
'  Poertner  v.  Russell,  33  Wis.  193. 

®  Hoboken  Land  &  Imp.  Co.  v.  Mayor,  31  N.  J.  Eq.  461 ;  Heywood  v. 
City  of  Buffalo,  14  N.  Y.  534 ;  Corwin  v.  Campbell,  45  How.  Pr.  9 ;  Van 
Natta-Lynds  Drug  Co.  v.  Gerson,  43  Kan.  660;  23  Pac.  Rep.  1071;  Bod- 
man  V.  Drainage  Commissioners,  132  111.  439;  24  N.  E.  Rep.  630 ;  Burgess 
V.  Davis,  138  111.  578 ;  28  N.  E.  Rep.  817. 
38 


594     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

adequate  damages  can  not  be  estimated,  or  be  measured 
by  any  certain  pecuniary  standard,  an  injunction  will 
issue, ^ 

Where  the  jurisdiction  is  concurrent  with  that  of  a 
court  of  law  a  court  of  equity  will  not  interfere  with  the 
proceedings  at  law  unless  it  can  give  a  better  remedy  or 
the  case  can  be  better  tried  by  the  procedure  of  a  court  of 
equity.^  But  if  a  court  of  equity  has  taken  jurisdiction 
of  an  action  for  another  purpose  it  may  retain  the  case  for 
all  purposes  and  afford  equitable  relief  although  other  re- 
lief might  be  had  in  a  court  of  law. 

Injunction  can  only  issue  against  parties  to  the  suit,  or 
persons  affected  by,  or  acting  in  contravention  of,  some 
order  or  decree  of  the  court,  or  of  the  pending  proceed- 
ing.^ 

The  issuance  of  temporary  injunctions  or  restraining  or- 
ders rests  in  the  discretion  of  the  court  and  the  writ  will 
not  be  issued  except  upon  a  clear  showing.  This  is 
especially  true  of  mandatory  injunctions.* 

The  granting  of  injunctions  rests  in  the  sound  discretion 
of  the  court  and  will  never  be  granted  when  they  would 
be  against  good  conscience,  or  productive  of  hardship,  op- 
pression, injustice,  or  public  or  private  mischief.' 

The  power  to  issue  writs  of  injunction  is  usually  con- 
fined to  courts  of  original  jurisdiction.^  But  the  power 
to  exercise  such  jurisdiction  exists  in  appellate  courts,  so 
far  as  it  is  necessary  to  carry  out  their  general  appellate 

'  Wilson  V.  City  of  Mineral  Point,  39  Wis.  160;  Mechanics'  etc.,  Bank 
V.  Debolt,  1  Ohio  St.  592  ;  Westmoreland,  etc.,  Co.  v.  DeWitt,  130  Pa.  St. 
235 ;  18  Atl.  Rep.  724  ;  Bronk  v.  Riley,  2  N.  Y.  Supl.  266  ;  Hodge  v.  Giese, 
43  N.  J.  Eq.  342 ;  11  Atl.  Rep.  484. 

^  10  Am.  &  Eng.  Enc.  of  Law,  795. 

3  10  Am.  &  Eng.  Enc.  of  Law,  796. 

*  Delaware,  etc.,  Co.  v.  Central  Stock  Yard,  etc.,  Co.,  43  N.  J.  Eq.  605 ; 
12  Atl.  Rep.  374. 

^  Sheldon  v.  Rockwell,  9  Wis.  166;  76  Am.  Dec.  265;  Pettibone  v.  La 
Crosse,  etc.,  R.  Co.,  14  Wis.  443 ;  Cobb  v.  Smith,  16  Wis.  661. 

«  Kent  V.  Mahaflfy,  2  Ohio  St.  498;  Campbell  v.  Campbell,  22  111.  664; 
Bryant  v.  People,  71  111.  32 ;  Cooper  v.  City  of  Mineral  Point,  34  Wis. 
181. 


INJUNCTIONS.  595 

jurisdiction,  enforce  their  orders,  judgments  and  decrees, 
and  protect  litigants  in  their  rights  affected  by  the  appeal 
during  the  pendency  of  the  action  in  such  courts.^  And 
to  this  extent  the  jurisdiction  is  inherent  and  can  not  be 
taken  away  by  the  law-making  power.* 

On  the  other  hand,  if  a  court  is,  by  the  constitution, 
limited  in  its  powers  to  appellate  jurisdiction,  the  legisla-^ 
ture  can  not  invest  it  with  original  jurisdiction  to  issue 
injunctions.^ 

Constitutional  or  statutory  provisions,  found  in  many 
of  the  states,  conferring  upon  appellate  courts  jurisdiction 
to  issue  and  determine  writs  of  habeas  corpus,  mandamus, 
iyijunction,  quo  warranto,  certiorari,  and  other  original  and 
remedial  writs  have  given  rise  to  some  confusion,  and  con- 
siderable diversity  of  opinion,  as  to  the  extent  of  the 
jurisdiction  thus  conferred,  particularly  as  respects  the 
writ  of  injunction.  The  other  writs  specifically  men- 
tioned differ  essentially  from  the  writ  of  injunction. 
They  are  original,  jurisdictional,  and  prerogative  writs. 
The  writ  of  injunction  is  not.  Jurisdiction  over  the  other 
writs  might  reasonably  be  granted  to  an  appellate  court  as 
a  part  of  its  general  power  to  supervise  and  control  sub- 
ordinate courts  and  other  departments  of  state,  and  as  a 
part  of  the  sovereign  power  to  be  used  for  the  purpose  of 
protecting  the  sovereignty,  in  all  its  departments,  and  of 
protecting  the  citizens  in  their  liberties.* 

»  Elliott's  Appel.  Proc,  sec.  512;  Kent  v.  Mahaffy,  2  Ohio  St.  498; 
Leech  v.  The  State,  78  Ind.  570 ;  Cooper  v.  City  of  Mineral  Point,  34 
Wis.  181. 

'  Elliott's  Appel.  Proc,  sec.  512. 

^  Campbell  v.  Campbell,  22  111.  664;  Vail  v.  Dinning,  44  Mo.  210;  Fos- 
ter V.  State,  41  Mo.  61. 

*  Attorney-General  v.  Railroad  Companies,  35  Wis.  425,  513,  518;  At- 
torney-General V.  Blossom,  1  Wis.  317;  Vail  v.  Dinning,  44  Mo.  210:  At- 
torney-General V.  City  of  Eau  Claire,  37  Wis.  400,  442. 

"  The  grant  is  to  the  supreme  court  of  the  state,  in  the  full  signifi- 
cance of  that  term  given  in  Attorney -General  v.  Blossom,  designed  to 
have  a  general  judicial  oversight  of  the  state  in  all  its  interests,  public 
and  private.  To  this  court,  as  such,  are  given  general  appellate  juris- 
diction and  superintending  control  over  all  other  courts  throughout  the 
state,  because  these  are  essential  to  the  judicial  supremacy  of  the  court 


596      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

But  while  the  writ  of  injunction  may  be  used  for  like 
purposes  it  is  generally  resorted  to  for  the  protection  of 
private  property  and  private  rights.  It  has  never  been 
classed  as  an  original  or  prerogative  writ.^ 

in  all  ordinary  litigation;  and  original  jurisdiction  of  certain  writs^ 
'  because  they  are  designed  for  the  very  purpose  of  protecting  the  sov- 
ereignty and  its  ordained  offices  from  invasion  or  intrusion,  and  also  to 
nerve  its  arm  to  protect  its  citizens  in  their  liberties,  and  to  guard  its 
prerogatives  and  franchises  against  usurpation.'  This  is  the  language 
of  the  court  in  Attorney-General  v.  Blossom,  which  we  adopt  and 
approve  as  applicable  to  the  question  before  us.  And  it  tends  to  show, 
as  the  whole  opinion  in  that  case  shows,  that  the  three  grants  of  juris- 
diction proceed  on  one  policy;  appellate  jurisdiction,  to  decide  finally 
all  ordinary  litigation;  superintending  jurisdiction  over  all  other  courts 
to  control  the  course  of  ordinary  litigation  in  them;  and,  outside  of 
these,  original  jurisdiction  of  certain  proceedings  at  law  and  in  equity, 
to  protect  the  general  interests  and  welfare  of  the  state  and  its  people, 
which  it  would  not  do  (to  quote  Smith,  J.,  again)  to  dissipate  and  scatter 
among  many  inferior  courts.  Here  are  three  jurisdictions,  but  one  policy, 
to  make  this  court  indeed  a  supreme  judicial  tribunal  over  the  whole 
state ;  a  court  of  laft  resort  on  all  judicial  questions  under  the  consti- 
tution and  laws  of  the  state ;  a  court  of  first  resort  on  all  judicial  ques- 
tions afiecting  the  sovereignty  of  the  state,  its  franchises  or  preroga- 
tives, or  the  liberties  of  its  people."  Attorney-General  v.  Railroad 
Companies,  35  Wis.  425,  518. 

^  "  In  Attorney  General  v.  Blossom,  Smith,  J.,  speaking  of  the  group  of 
writs  given  to  the  court,  says  that  '  this  class  of  writs,  it  would  seem, 
appertain  to  and  are  peculiarly  the  instruments  of  the  sovereign  power, 
acting  through  its  appropriate  department,  prerogatives  of  sovereignty,' 
etc.  He  calls  them  indiscriminately  original  and  prerogative  writs;  and 
says  that  they  'differ  essentially,  in  their  character  and  objects,  from 
ordinary  writs  issued  by  the  courts  in  the  regular  and  usual  administra- 
tion of  the  law  between  parties.  They  go  to  accomplish  peculiar  and 
specific  objects,  carrying  with  them  the  special  mandate  of  the  sover- 
eign power,  etc.  They  bear  no  resemblance  to  the  usual  processes  of 
courts  by  which  controversies  between  private  parties  are  settled  by  the 
judicial  tribunals  of  every  grade.'  He  speaks  particularly  of  the  writs 
of  certiorari  and  injunction  as  'remedial  writs  of  a  high  judicial  char- 
acter, and  essential  to  the  complete  exercise  of  the  function  of  sover- 
eignty in  the  administration  of  justice.' 

"Substantially  correct  of  all  the  other  writs  named,  this  language  does 
not  appear  to  be  accurately  used  of  the  writ  of  injunction.  At  common 
law,  all  the  other  writs  given  were  prerogative  writs,  issuing  on  behalf 
of  the  state  only;  and  though  sometimes  used  for  private  remedy,  were 
so  used  on  special  leave  given,  and  in  the  name  of  the  state,  and  were 
not  ordinary  writs  applicable  to  private  controversies  or  issuable  of 


INJUNCTIONS.  597 

Under  these  constitutional  and  statutory  provisions  con- 
ferring jurisdiction,  generally,  over  the  writs  mentioned, 
the  question  arose  whether  the  intention  and  eflect  was  to 

course.  All  the  other  writs  must  or  might  be  original ;  as  given  to 
this  court  they  must  be  original  writs,  in  the  modern  and  practical 
sense  of  the  term  original  writs.  The  writ  of  injunction  was  not  origi- 
nal. They  are,  as  given,  essentially  jurisdictional  writs,  implying  the 
jurisdiction  granted  in  each  case,  ex  vi  termini.  The  writ  of  injunction" 
was  not  an  original  writ,  and  by  itself,  as  given,  implies  no  specific  juris- 
diction. It  was  a  judicial  writ,  going  only  upon  some  judgment,  inter- 
locutory or  final,  of  the  court  issuing  it,  in  some  case  of  which  the  court 
had  jurisdiction  otherwise;  never  jurisdictional,  but  always  remedial  in 
aid  of  jurisdiction  already  attached,  within  the  vast  range  of  equitable 
cognizance.  And  the  difficulty  arises  wholly  from  placing  this  non- 
jurisdictional  writ  in  a  group  of  jurisdictional  writs;  this  judicial  writ 
amongst  original  writs;  this  equitable  writ  of  vague  and  varied  applica- 
tion amongst  common  law  writs  of  sharp  and  terse  significance ;  this 
confusion  of  equitable  and  legal  jurisdiction.  In  Attorney  General  v. 
Blossom,  the  jurisdiction  in  question  was  quo  warranto.  And  elaborately 
as  the  question  was  discussed  by  the  able  judge  who  wrote  the  opin- 
ion, he  seems  to  have  followed  the  framers  of  the  constitution  in  a  want 
of  perception  that  the  writ  of  injunction  appeared  to  be  illy  grouped 
with  habeas  corpus,  mandamus,  quo  warranto  and  certiorari,  and  that  the 
court  might  be  troubled  some  day,  as  it  has  been  now,  how  to  take  juris- 
diction of  a  writ  not  before  jurisdictional ;  how  to  hear  and  determine  a 
writ  not  before  original.     .     .     . 

"All  the  other  writs  of  the  group  are  common  law  writs.  The  writ  of 
injunction,  when  the  constitution  was  adopted,  was  exclusively  an  equi- 
table writ,  used  only  by  courts  of  chancery.  As  such  it  was  given  to 
this  court,  implying  and  carrying  with  it  equitable  jurisdiction  to  em- 
ploy it.  It  is  therefore  plain  that  the  original  jurisdiction  of  this  court 
is  both  legal  and  equitable,  within  certain  limits ;  legal  for  the  use  of  the 
common  law  writs;  equitable  for  the  use  of  the  chancery  writ.  The 
use  of  the  former  must  be  according  to  the  course  of  common  law 
courts.  The  use  of  the  latter,  according  to  the  course  of  courts  of 
equity;  in  each  case,  subject  to  statutory  modifications  of  the  practice, 
which  do  not  impair  the  jurisdiction  granted.  The  common  law  writs, 
as  already  observed,  imply  and  define  the  jurisdiction  appurtenant  to 
them,  as  jurisdictional  writs.  It  is  otherwise  with  the  writ  of  injunc- 
tion. Equity  has  no  jurisdictional  writs.  By  the  course  of  courts  of 
equity,  the  jurisdiction  must  precede  the  writ.  And  though  the  writ  is 
the  end  of  the  equitable  jurisdiction  implied,  the  scope  of  the  jurisdic- 
tion must  be  sought  mainly  outside  of  the  writ  itself.  It  can  issue  only 
after  bill  or  information  filed.  And  the  question  still  remains,  what  is 
the  original  equitable  jurisdiction  conferred  on  the  court,  of  bills  or  in- 
formations, dependent  on  the  use  of  the  writ?"  Attorney  General  v. 
Railroad  Companies,  35  Wis.  425,  512,  517. 


598        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

confer  general  and  nnliraited  jurisdiction  to  issue  and  de- 
termine writs  of  injunction  or  only  to  issue  such  writs  in 
aid  of  its  appellate  jurisdiction  and  as  in  the  nature  of  a 
prerogative  writ.  In  some  of  the  states  it  is  held  that 
such  a  grant  of  jurisdiction  respecting  writs  of  injunction 
does  not  confer  general  and  unlimited  power  to  issue  such 
writs,  but  that  by  virtue  of  such  legislation  the  writ  be- 
comes a  quasi  prerogative  writ,  and  may  be  issued  by  the 
appellate  court  for  public  purposes  and  in  aid  of  its  appel- 
late jurisdiction,  but  not  for  the  protection  of  private  prop- 
erty or  private  rights.' 

*  Attorney  General  v.  Railroad  Companies,  35  Wis.  425,  521 ;  Attorney 
General  v.  City  of  Eau  Claire,  37  Wis.  400,  406;  Elliott's  Appel.  Proc, 
sec.  512;  States.  Cunningham,  81  Wis.  440;  51  N.  W.  Rep.  724. 

"The  other  courts  may,  indeed,  adjudicate  public  as  well  as  pri- 
vate questions ;  and  the  appellate  and  superintending  jurisdiction  of 
this  court  may  therefore  reach  public  as  well  as  private  interests.  But 
the  framers  of  the  constitution,  for  greater  security,  added  to  these 
original  jurisdiction  over  great  public  interests,  for  reasons  already  as- 
signed. In  a  government  like  ours,  public  rights  of  the  state  and  pri- 
vate rights  of  citizens  often  meet,  and  may  well  be  involved  in  a  single 
litigation.  So  it  may  be  in  the  exercise  of  the  original  jurisdiction  of 
the  court.  But  it  is  safe  to  say  that  the  constitution  is  content  to  in- 
trust purely  private  rights  to  the  appellate  and  superintending  jurisdic- 
tions given,  and  to  have  granted  the  original  jurisdiction  of  this  court 
for  the  better  and  prompter  and  more  authoritative  protection  of  public 
interests.     This  is  its  primary  and  controlling  object  and  character. 

"  This  is  very  plainly  implied  bj'  the  grant  of  the  writs  of  habeas 
corpus,  mandamus,  quo  warranto  and  certiorari,  as  is  well  reasoned  in  At- 
torney-General V.  Blossom.  And,  plainly  recognizing  the  intention  of 
the  constitution  to  vest  in  this  court  one  jurisdiction,  by  several  writs, 
to  be  put  to  several  uses,  for  one  consistent,  congruous,  harmonious 
purpose,  we  must  look  at  the  writ  of  injunction  in  the  light  of  that  pur- 
pose, and  seek  its  use  in  the  kindred  uses  of  the  other  writs  associated 
with  it.  Noscitur  a  sociis,  is  an  old  and  safe  rule  of  construction,  said  to 
have  originated  with  as  great  a  lawyer  and  judge  as  Lord  Hale,  pecu- 
liarly applicable  to  this  consideration.  Lord  Bacon  gives  the  same  rule 
in  a  more  detailed  form,  more  emphatic  here.  Copulntio  verborum  indi- 
cat  acceptationem  in  eodem  sensu.  Here  are  several  writs  of  defined  and 
certain  application  classed  with  one  of  vague  import.  We  are  to  be 
guided  in  the  application  of  the  uncertain,  by  its  certain  associates. 
The  joinder  of  the  doubtful  writ  with  the  defined  writs  operates  to  in- 
terpret and  restrict  its  use,  so  as  to  be  accepted  in  the  sense  of  its  asso- 
ciates; so  that  it  and  they  may  harmonize  in  their  use,  for  the  common 
purpose  for  which  it  is  manifest  that  they  were  all  given.     And  thus,  in 


INJUNCTIONS,  599 

And  such  a  limitation  upon  the  jurisdiction  of  the  ap- 
pellate courts,  and  upon  the  meaning  to  be  conveyed  by 
the  general  language  used  in  such  constitutional  and  stat- 

this  use  and  for  this  purpose,  the  constitution  puts  the  writ  of  in- 
junction to  prerogative  uses  and  makes  it  a  quasi  prerogative  writ. 

"  There  is  the  less  difficulty  in  reaching  this  construction  and  giving 
definite  meaning  to  the  jurisdiction  of  injunction,  because  of  the  very 
contrast  between  this  writ  and  mandamus.  The  latter  commands.  The 
former  forbids.  Where  there  is  nonfeasance,  mandamus  compels  duty. 
Where  there  is  malfeasance,  injunction  restrains  wrong.  And  so  near 
are  the  objects  of  the  two  writs,  that  there  is  sometimes  doubt  which  is 
the  proper  one;  injunction  is  frequently  mandatory,  and  mandamus 
sometimes  operates  restraint.  In  these  very  motions  it  was  argued  on 
one  side  that  the  remedy  of  the  state  is  by  mandamus,  on  the  other  that 
it  is  by  injunction.  And  it  is  very  safe  to  assume  that  the  constitution 
gives  injunction  to  restrain  excess,  in  the  same  class  of  cases  as  it  gives 
mandamus  to  supply  defect ;  the  use  of  the  one  writ  or  the  other  in  each 
case  turning  solely  on  the  accident  of  over-action  or  shortcoming  of  the 
defendant.  And  it  may  be  that  where  defect  and  excess  meet  in  a  sin- 
gle case,  the  court  might  meet  both,  in  its  discretion,  by  one  of  the 
writs,  without  being  driven  to  send  out  both,  tied  together  with  red 
tape,  for  a  single  purpose. 

"This  view  excludes  jurisdiction  of  injunction  in  private  suits  be- 
tween private  parties,  proceeding  on  private  right  or  wrong.  In  ex- 
cluding them,  we  feel  quite  assured  that  we  are  only  giving  effect  to  the 
very  purpose  and  limit  of  the  constitution  in  the  grant  of  jurisdiction. 
And  we  were  aided  in  arriving  at  this  conclusion,  by  decisions  of  the 
supreme  court  of  Missouri,  in  somewhat  analogous  cases,  excluding 
original  jurisdiction  of  causes  of  merely  private  interest.  State  v.  Stew- 
art, 32  Mo.  379 ;  State  v.  Lawrence,  38  id.  535 ;  Foster  v.  State,  41  id,  61 ; 
Yail  V.  Dinning,  44  id.  210;  State  v.  Vail,  53  id.  97.  In  our  view,  the 
jurisdiction  of  the  writ  is  of  a  quasi  prerogative  writ.  The  prerogative 
writs  proper  can  issue  only  at  the  suit  of  the  state  or  the  attorney-gen- 
eral in  the  right  of  the  state  ;  and  so  it  must  be  with  the  writ  of  injunc- 
tion, in  its  use  as  a  guasi  prerogative  writ.  All  may  go  on  the  relation 
of  a  private  person,  and  may  involve  private  right.  It  is  the  duty  of 
the  court  to  confine  the  exercise  of  its  original  jurisdiction  to  questions 
publici  juris.  And  hereafter  the  court  will  require  all  classes  of  cases,  as 
it  has  hitherto  done  some,  in  whicli  it  is  sought  to  put  its  original  juris- 
diction in  motion,  to  proceed  upon  leave  first  obtained,  upon  a  prima  facie 
showing  that  the  case  is  one  of  which  it  is  proper  for  the  court  to  take 
cognizance." 

Attorney-General  v.  Railroad  Companies,  35  Wis.  425, 518. 

As  to  what  are  such  matters  of  public  concern  as  will  call  for  the  issu- 
ance of  the  writ  by  an  appellate  court  under  this  construction,  see  At- 
torney-General V.  City  of  Eu  Claire,  37  Wis.  400,  407,  440. 


GOO     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

utory  provisions,  would  seem  to  be  absolutely  necessary  to 
preserve  and  maintain  the  distinction  between  courts  of 
original  and  those  of  appellate  jurisdiction,  and  the  extent 
and  general  character  of  the  jurisdiction  of  each  so  clearly 
separated  by  constitutional  provisions,^ 

An}^  other  construction  would  vest  appellate  courts  with 
unlimited  original  jurisdiction  over  a  large  and  most  im- 
portant class  of  cases  involving  purely  private  rights.^ 

But  the  right  of  courts  of  last  resort  to  issue  injunctions 
is  not  always  confined  to  their  appellate  jurisdiction. 
They  may  also  be  vested  with  original  jurisdiction  in  cer- 
tain actions  and  proceedings,  and  in  connection  with  such 
jurisdiction  may  issue  injunctions,  as  a  part  of  their  orig- 
inal jurisdiction  in  such  cases.^ 

The  right  to  appeal  to  a  court  of  equity  for  injunctive 
relief  is  sometimes  lost  by  the  failure  of  the  party  seeking 
such  aid  to  proceed  in  time.  He  must  use  reasonable  dili- 
gence in  making  his  application  or  the  court  will  decline 
to  exercise  its  jurisdiction.* 

The  power  of  courts  to   enjoin  the  collection  of  taxes 

'■  Attorney-General  v.  Railroads,  35  Wis.  425,  521 ;  Vail  v.  Dinning,  44 
Mo.  210. 

^  In  Elliott's  Appellate  Procedure,  sec.  512,  it  is  said:  "  It  is  entirely 
safe  to  affirm  that  a  writ  of  injunction  can  not  be  issued  save  in 
the  exercise  of  some  function  of  appellate  jurisdiction.  Original  ju- 
risdiction can  only  be  exercised  by  the  courts  to  which  original  ju- 
risdiction is  confided  by  the  constitution  or  the  laws.  Mischievous  and 
evil  results  would  inevitably  follow  from  a  blending  of  appellate  and 
original  jurisdiction,  since  the  machinery  of  the  appellate  and  trial 
courts  is  of  such  a  radically  different  character.  It  is  with  reason, 
therefore,  that  the  appellate  tribunals  are  reluctant  to  exercise  juris- 
diction that  is  in  its  nature  original.  Sound  principle,  as  well  as  wise 
policy,  demands  that  these  independent  jurisdictions,  for  such  they  are, 
be  kept  separate,  for  deplorable  consequences  must,  of  necessity,  result 
from  blending  them.  The  power  to  review  is  in  its  nature  different 
from  the  power  to  originally  try  and  decide,  and  only  evil  can  flow  from 
an  attempt  to  break  down  the  barrier  which  separates  them.  Such  an 
attempt  can  only  be  arbitrary  since  there  is  no  principle  upon  which  a 
union  of  the  two  jurisdictions  can  be  effected." 

^  Cooper  V.  City  of  Mineral  Point,  34  Wis.  181. 

*  10  Am.  &  Eng.  Enc.  of  Law,  802;  Sheldon  v.  Rockwell,  9  Wis.  166; 
76  Am.  Dec.  265. 


INJUNCTIONS.  601 

needs  to  be  specially  noticed.  The  general  rule  on  the 
subject  is  that  the  collection  of  a  tax  will  not  be  enjoined 
upon  the  sole  ground  that  the  tax  is  irregular  or  illegal. 
There  must  be  some  special  circumstances  attending  the 
sale  which  will  distinguish  it  from  a  common  trespass  and 
bring  it  within  some  recognized  head  of  equity  jurisdic- 
tion before  the  preventive  remedy  of  injunction  may  be 
invoked.^ 

The  special  circumstances  attending  the  sale,  or  affect- 
ing the  rights  of  the  owner  of  property,  which  will  au- 
thorize a  court  of  equity  to  interfere  by  injunction  are 
fraud,  multiplicity  of  suits,  irreparable  injury,  or  a  cloud 
upon  title  to  real  estate,  or  that  the  plaintiff"  is  without  an 
adequate  remedy  at  law.^ 

And  in  this  case  the  exceptions  to  the  rule  come  very 
near  to  an  entire  extinguishment  of  the  rule  itself.  But 
even  Avith  these  important  exceptions,  the  rule  is  not  uni- 
formly adhered  to  by  the  courts,  and  the  right  of  a  tax- 
payer to  enjoin  a  tax  sale,  involving  none  of  these  equit- 
able circumstances,  is  frequently  maintained  and  enforced.^ 

'  10  Am.  &  Eng.  Enc.  of  Law,  857 ;  Warden  v.  Board  of  Supervisors, 
14  Wis.  618;  Mann  v.  Board  of  Education,  53  How.  Pr.  289;  Swinney  v. 
Beard,  71  111.  27;  Schulenberg,  etc..  Lumber  Co.  v.  Town  of  Hay  ward, 
20  Fed.  Rep.  422;  Hanne winkle  v.  Mayor,  15  Wall.  547;  Susquehanna 
Bank  v.  Supervisors,  25  N.  Y.  312;  Douglass  v.  Town  of  Harrisville,  9 
W.  Va.  162 ;  27  Am.  Rep.  548;  Bogert  v.  City  of  Elizabeth,  25  N.  J.  Eq. 
426;  Dews  v.  Chicago,  11  Wall.  108;  Savings  &  L.  Society  v.  Austin,  46 
Cal.  416 ;  Central  Pac.  R.  C.  v.  Corcoran,  48  Cal.  65 ;  Corrothers  v.  Board 
of  Education,  16  W.  Va.  527;  Hoagland  v.  Township  of  Delaware,  17  N. 
J.  Eq.  106 ;  Hallenbeck  v.  Hahn,  2  Neb.  377,  427 ;  Schofield  v.  Watkins, 
22  111.  ()6 ;  Cooley  on  Tax.  536 ;  State  Railroad  Tax  Cases,  92  U.  S.  575, 
613. 

'  Judd  V.  Town  of  Fox  Lake,  28  Wis.  583 ;  WMllard  r.  Comstock,  58 
AVis.  565;  17  N.  W.  Rep.  401 ;  Mann  r.  Board  of  Education,  53  How.  Pr. 
289;  First  National  Bank  v.  Cook,  77  111.  622;  Porter  v.  R.  R.  I.  &  St.  L. 
R.  R.  Co.,  76  111.  561 ;  Hannewinkle  v.  Mayor,  15  Wall.  547  ;  Douglass  v. 
Town  of  Harrisville,  9  W.  Va.  162  ;  27  Am.  Rep.  548  ;  Clarke  v.  Ganz,  21 
Minn.  387;  Dows  v.  Chicago,  11  Wall.  108;  Minnesota,  etc.,  Co.  v.  Pal- 
mer, 20  Minn.  468;  Leitch  v.  Wentworth,  71  111.  146;  Cooley  on  Tax. 
536. 

^  Burnett  v.  Cincinnati,  3  Ohio,  73 ;  17  Am.  Dec.  582;  Mitchell  v.  Mil- 
waukee, 18  Wis.  92  ;  Bogert  v.  City  of  Elizabeth,  27  N.  J.  Eq.  568. 


602       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

But  this  is  a  departure  from  the  ancient  equity  rule  on 
the  subject,  as  the  same  is  still  adhered  to  in  the  federal 
courts.  It  is  a  departure,  however,  that  is  to  be  com- 
mended. A  party  whose  property  is  about  to  be  sold  for 
an  illegal  or  unauthorized  tax,  should  not  be  compelled  to 
see  his  property  sold,  without  authority  of  law,  and  be  de- 
nied preventive  relief  because  it  is  unauthorized,  and  he 
may  obtain  relief,  after  the  wrong  is  committed,  by  apply- 
ing to  a  court  of  law.  The  only  answer  to  this  is  the  one 
of  public  policy  which,  it  is  said,  should  prevent  the  courts 
from  interfering  with  the  assessment  and  collection  of  the 
revenues  necessary  to  carry  on  the  government.  This 
should  have  its  weight,  and  courts  should  not  interfere 
except  in  clear  cases.  But  if  it  clearly  appears  that  the 
tax  is  illegal  and  void,  the  property  owner  should  have 
his  remedy  by  injunction.^ 

^  The  correct  rule  is  stated,  it  is  believed,  in  Burnett  v.  Cincinnati,  3 
Ohio,  73,  86 ;  1 7  Am.  Dec.  582,  583,  although  the  doctrine  as  there  stated 
has  not  been  generally  accepted.    The  court  say  in  that  case : 

"The  bill,  in  this  case,  represents  that  under  a  proceeding  altogether 
illegal  and  void,  but,  nevertheless,  under  legal  color,  the  defendants  are 
about  to  sell  a  part  of  the  real  estate  of  the  complainant,  and  prays 
the  interference  of  the  court,  in  the  exercise  of  its  chancery  pow- 
ers to  restrain  them  by  injunction.  The  demurrer  and  the  argument  in 
support  of  it  admit  the  truth  of  the  allegations,  and  deny  that  this  court 
can  aid  the  party.  If  this  be  a  tenable  position,  it  results  that  public 
officers,  having  authority  to  operate  upon  the  property  of  their  fellow- 
citizens,  must  be  permitted  to  proceed,  however  illegal,  unjust,  or  op- 
pressive their  conduct  may  be.  It  follows,  too,  that  the  property  of  a 
citizen  may  be  exposed  to  sale,  under  circumstances  that  render  it  im- 
possible for  the  parties  to  know  whether  a  title  can  pass  or  not.  Thus 
involving  great  hazard  to  all  concerned,  and  perplexing  the  titles  to  real 
estate,  for  no  beneficial  purpose  to  any  person  whatever.  If  such  be  the 
rule  of  the  law,  we  must  so  administer  it.  But  nothing  short  of  a  series 
of  repeated  adjudications  would  be  sufiicient  to  demonstrate  that  the  law 
is  so  settled. 

"  The  authorities  which  have  been  referred  to  do  not  lead  to  the  con- 
clusion insisted  upon  by  the  defendants.  They  all  proceed  upon  the 
principle  that  in  very  many  this  court  may  interpose  to  prevent  mis- 
chief, and  to  protect  individuals  in  the  enjoyment  of  their  rights. 
Where  aid  has  been  decreed,  it  has  always  arisen  from  the  circumstances 
of  the  particular  case.     And  the  confusion  and  seeming  contradictions 


\ 


INJUNCTIONS.  G03 

If  the  tax  is  by  way  of  a  special  assessment  for  public 
improvements,  or  the  like,  and  it  appears  that  the  steps 
necessary  to  give  the  assessing  officers  jurisdiction  have  not 
been  taken,  or  the  necessary  prerequisites  to  the  making 
of  the  assessment  are  not  shown,  the  proceeding  will  be 
enjoined.'  But  this  is  placed  upon  the  ground  that  such  a 
proceeding  would  create  a  cloud  upon  the  title  to  real 
estate. 

It  has  been  held  that  where  it  appears  that  the  estab- 
lished principles  of  taxation  have  been  violated,  and  that 
actual  injustice  will  ensue,  or  that  the  tax  has  been  levied 
for  an  unauthorized  purpose,  equity  will  interfere  in  a 
proper  case.^  And  where  the  claim  of  the  adverse  party, 
or  the  proceeding  sought  to  be  set  aside  is  valid  on  its 
face  and  extrinsic  facts  are  necesary  to  be  proved  in  order 
to  show  the  invalidity  or  illegality.^ 

in  the  cases  are  occasioned  by  the  dicta  of  the  judges,  and  not  by  any 
confliction  in  the  principle  decided. 

"  In  regard  to  real  estate,  it  is  well  established  that  chancery  ma)'  in- 
terpose by  injunction  to  jirevent  what  is  considered  as  destruction.  But 
destruction,  in  the  sense  used,  does  not  mean  annihilation.  It  means 
no  more  than  that  injury  which  greatly  impairs  its  intrinsic  value. 
In  a  city  the  sale  of  a  part  of  a  lot  for  assessments  may  often  be  very 
destructive  to  the  interest  of  the  proprietor,  though  no  title  passed  by 
such  a  sale.  A  cloud  would  be  cast  upon  the  title,  which  litigation  only 
could  remove,  and  until  removed,  the  property  might  be  valueless  to 
the  owner,  subject,  too,  during  the  period  of  litigation,  to  additional  as- 
sessments and  embarrassments. 

"  When  an  assessment  of  a  tax  is  made  and  its  legality  disputed, 
the  uncertainty  attendant  upon  the  final  result,  puts  the  estate  upon 
which  it  operates  in  imminent  jeopardy.  If  no  title  passes  by  a  sale, 
the  party  has  a  remedy  at  law.  He  can  defend  his  possession ;  but  if 
title  do  pass  he  is  remediless  altogether.  A  mode,  therefore,  of  decid- 
ing the  question  before  any  right  is  affected,  is  safest  for  all  parties." 

See  also,  Culbertson  v.  Cincinnati,  16  Ohio,  574 ;  Rhea  v.  Dick,  34  Ohio 
St.  420;  City  of  Delphi  v.  Bowen,  61  Ind.  29;  Milwaukee  Iron  Co.  v. 
Town  of  Hubbard,  29  Wis.  51 ;  Foster  v.  City  of  Kenosha,  12  Wis.  616  ; 
Williams  v.  Peinny,  25  la.  436 ;  AVood  v.  Draper,  24  Barb.  187 ;  Crawford 
V.  Bradford,  23  Fla.  404;  2  Sou.  Rep.  782. 

*  Dean  v.  City  of  Madison,  9  Wis.  402  ;  Johnson  v.  City  of  Milwaukee, 
40  Wis.  315. 

'  Warden  v.  Board  of  Supervisors,  14  Wis.  618;  Mann  v.  Board  of  Ed- 
ucation, 53  How.  Pr.  289;  Nunda  v.  Chrystal  Lake,  79  111.  311. 

'  Mann  v.  Board  of  Education,  53  How.  Pr.  289;  Scribner  v.  Allen,  12 


604     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

This  doctrine  rests  upon  the  ground  that  such  a  sale 
would  cast  a  cloud  upon  the  title  to  the  property  sold  and 
that  the  case  falls  under  one  of  the  well  recognized  heads 
of  equity  jurisdiction  above  mentioned. 

If  the  tax  is  not  absolutely  void,  but  is  irregularly  or 
improperly  assessed,  a  court  of  equity  will  not  interfere 
except  upon  a  showing  that  the  tax  attempted  to  be  en- 
forced is  inequitable  and  unjust  and  its  enforcement  would 
be  against  conscience  and  good  morals.^ 

So  it  is  held  that  the  power  will  only  be  exercised  in  the 
absence  of  fraud  or  like  grounds  for  equitable  interference, 
"  in  cases  where  the  officers  exceed  their  powers  and  levy, 
where  they  can,  under  the  law,  levy  no  such  tax,  because 
the  tax  is  not  authorized  by  the  law;  or  where  the  persons 
attempting  to  make  the  levy  are  not  officers  de  jure  or  de 
facto;  or  where  the  tax  is  levied  on  property  wholly  ex- 
empt; or  where  the  law  under  which  it  is  levied  violates 
the  rule  of  uniformity  and  is  therefore  unconstitutional."^ 

So  where  it  is  required  by  statute  that  the  personal  prop- 
erty of  a  delinquent  tax-payer  must  be  exhausted  before 
resort  can  be  had  to  his  real  estate  it  is  held  that  the  sale 
of  real  estate  for  the  taxes  will  be  enjoined  where  it  ap- 
pears that  the  owner  has  personal  property  out  of  which 
the  tax  could  be  made.* 

A  collector  of  taxes  can  not  be  enjoined  from  enforce- 
ment of  the  collection  of  a  tax  on  a  void  levy,  because,  in 
such  case,  the  officer  is  a  trespasser  and  the  party  injured 
has  an  adequate  remedy  at  law.*  And  it  is  usually  held 
that  a  tax  sale  of  property  which  would,  upon  the  face  of 

Minn.  148;  Liebenstein  v.  Mayor,  24  N.  J.  Eq.  200;  Morris  Canal,  etc., 
Co.  V.  Jersey  City,  12  N.  J.  Eq.  227 ;  South  Platte  Land  Co.  v.  BuflFalo 
Co.,  7  Neb.  253 ;  Jenkins  v.  Board  of  Supervisors,  15  Wis.  11. 

1  Gulf  Railroad  Co.  v.  Morris,  7  Kan.  210,  229. 

2  Nunda  v.  Chrystal  Lake,  79  111.  311 ;  McConkey  v.  Smith,  73  111.  313; 
Coolbaugh  v.  Huck,  86  111.  600;  Swinney  v.  Beard,  71  111.  27  ;  Christie  v. 
Maiden,  23  W.  Va.  667;  Osborn  v.  Bank  of  United  States,  9  Wheat.  738; 
Du  Page  County  v.  Jenks,  65  111.  275 ;  Munson  v.  Minor,  22  111.  595 ;  Union 
Trust  Co.  V.  Weber,  96  111.  346;  Winkler  v.  Halstead,  36  Mo.  Ap.  25. 

3  Johnson  v.  Hahn,  4  Neb.  139  ;  Abbott  v.  Edgerton,  53  Ind.  196. 
*  McPike  V.  Pew,  48  Mo.  525 ;  Ritter  v.  Patch,  12  Cal.  298. 


i 


INJUNCTIONS.  605 

the  proceedings,  be  void,  will  not  be  enjoined  on  the  ground 
that  a  court  of  equity  will  not  restrain  acts  which,  when 
done,  will  injure  no  one.' 

So  it  is  held,  in  some  of  the  states,  that  the  fact  that 
the  property  is  exempt  from  taxatioTi  is  not  a  ground  for 
equitable  interference  by  injunction  where  the  fact  must 
appear  on  the  face  of  the  tax  deed,  on  the  ground  that 
such  a  deed  would  not  create  a  cloud  upon  the  title.^ 

The  same  considerations  that  will  prevent  a  court  of 
equity  from  enjoining  a  sale  for  taxes  will  also  preclude  it 
from  preventing  the  application  of  moneys  raised  by  tax- 
ation to  the  purposes  for  which  it  was  assessed  although 
such  purpose  is  illegal.^ 

Suits  for  the  purpose  of  restraining  the  assessment  or 
collection  of  federal  taxes  are  expressly  forbidden  by  stat- 
ute.'* But  a  statute  which  would  prevent  a  resort  to  a 
court  of  equity  to  enjoin  the  enforcement  of  an  illegal  tax, 
in  a  proper  case,  would  be  void  under  the  constitutions  of 
most  of  the  states.^ 

The  doctrine  that  injunction  will  not  lie  where  there  is 
an  adequate  remedy  at  law  is  applicable  to  tax  sales.^  So 
if  a  tax-payer  is  authorized  by  law  to  avoid  the  sale  of  his 
property  by  paying  under  protest  and  to  recover  the  money 

1  Head  v.  James,  13  Wis.  641  ;  Bucknall  r.  Story,  36  Cal.  67. 

^  Hollister  v.  Sherman,  63  Cal.  38  ;  Archbishop  r.  Shipman,  69  Cal.  586, 
591 ;  11  Pac.  Rep.  343;  The  Hoboken  Land  &  Imp.  Co.  v.  Mayor,  31  N. 
J.  Eq.  461 ;  Heywood  r.  City  of  Buffalo,  14  X.  Y.  534 ;  Morris  Canal,  etc., 
Co.  V.  Jersey  City,  12  X.  J.  Eq.  227. 

^  Kilbourne  v.  St.  John,  59  X.  Y.  21  ;  17  Am.  Rep.  291. 

The  law  of  the  several  states,  on  this  subject  of  enjoining  the  enforce- 
ment of  taxes,  as  declared  by  the  courts,  will  be  found  in  10  Am.  & 
Eng.  Enc.  of  Law,  pp.  863  to  872,  where  the  decisions  are  gathered  in 
the  foot-notes. 

*  Rev.  Stat.  U.  S.,  sec.  3224  ;  Schulenberg,  etc..  Lumber  Co.  v.  Town  of 
Hayward,  20  Fed.  Rep.  422. 

*  Whittaker  v.  City  of  Janesville,  33  Wis.  76. 

«  T.  B.  Scott  Lumber  Co.  v.  Oneida  County,  72  Wis.  158  ;  39  X.  W.  Rep. 
343 ;  De  Witt  v.  Hays,  2  Cal.  463 ;  56  Am.  Dec.  352  ;  Robinson  r.  Gaar, 
6  Cal.  273;  Exchange  Bank  v.  Hines,  3  Ohio  St.  1  ;  Brewer  v.  City  of 
Springfield,  97  Mass.  152;  Burnes  r.  Mayor,  2  Kan.  454;  Sage  v.  Town  of 
Fifield,  68  Wis.  546  ;  32  X.  W.  Rep.  629  ;  Michael  v.  City  of  St.  Louis,  18 
S.  W.  Rep.  967 ;  Boyd  v.  City  of  Selma,  11  Sou.  Rep.  393. 


606       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

SO  paid  in  an  action  at  law,  by  showing  the  illegality  of 
the  tax,  he  is  not  entitled  to  an  injunction.*  And  the  rule 
is  the  same  where  an  action  could  be  maintained,  at  law, 
against  the  collecting  officer,  to  recover  the  money  col- 
lected, or  for  damages.^ 

The  mere  insolvency  of  the  collecting  officer,  where 
there  are  no  grounds  for  equitable  interference,  will  not 
give  a  court  of  equity  jurisdiction  to  enjoin  the  enforce- 
ment of  the  tax,^ 

If  a  tax  is  in  part  legal  such  part  of  the  tax  must  be  paid 
before  the  illegal  portion  of  it  can  be  enjoined.* 

It  is  held,  also,  that  equity  will  not  restrain  the  execu- 
tion of  a  deed  of  land  sold  for  taxes  on  the  ground  that 
the  tax  proceedings  were  irregular  or  void,  unless  it  also 
appear  that  such  proceedings  were  inequitable  and  their 
continuance  would  be  against  conscience.^ 

If  payment  of  the  tax  has  been  tendered  either  in  money 
or  in  paper  that  the  collecting  officer  is  legally  bound  to 
accept  in  payment,  the  subsequent  enforcement  of  the  tax 
will  be  prevented  by  injunction.* 

A  court  of  equity  has  no  jurisdiction  to  enjoin  a  wrjong- 
ful  seizure  and  sale  of  personal  property  for  taxes  except 
in  rare  cases,  wh^re  the  property  has  some  peculiar  in- 
trinsic value  to  the  owner  that  can  not  be  compensated  in 
damages.^ 

As  to  the  power  of  the  courts  to  enjoin  the  issuance  and 
sale  of  municipal  bonds  the  authorities  do  not  agree.     In 

'  Judd  V.  Town  of  Fox  Lake,  28  Wis.  583  ;  Sage  v.  Town  of  Fifield,  68 
Wis.  546;  32  N.  W.  Eep.  629;  Brewer  v.  City  of  Springfield,  97  Mass.  152; 
Wells  Fargo  &  Co.  v.  Dayton,  11  Nev.  161. 

2  Wells  Fargo  &  Co.  v.  Dayton,  11  Nev.  161 ;  State  Railroad  Tax  Cases, 
92  U.  S.  575,  613;  Eitter  v.  Patch,  12  Cal.  298. 

'  Wells  Fargo  &  Co.  v.  Dayton,  11  Nev.  161. 

*  10  Am.  &  Eng.  Enc.  of  Law,  863 ;  City  of  Delphi  v.  Bowen,  61  Ind. 
29 ;  Brown  v.  Herron,  59  Ind.  61 ;  Ottawa  Glass  Co.  v.  McCaleb,  81  111. 
556 ;  Albuquerque  Nat.  Bank  v.  Perea,  147  U.  S.  87 ;  13  Sup.  Ct.  Rep. 
194 ;  Shepardson  v.  Gillett,  133  Ind.  125 ;  31  N.  E.  Rep.  788. 

^  Warden  v.  Board  of  Supervisors,  14  Wis.  618. 

®  Virginia  Coupon  Cases,  25  Fed.  Rep.  654. 

'  Odlin  V.  Woodruff,  31  Fla.  160;  12  Sou.  Rep.  227. 


INJUNCTIONS.  607 

some  of  the  cases  it  is  held  that  if  the  bonds  are  void  on 
their  face  their  issuance  and  sale  can  not  be  enjoined,  the 
doctrine  being  placed  upon  the  ground  that  by  the  putting 
out  of  such  a  bond  a  property  owner  can  not,  by  any  pos- 
sibility, be  injured.'  But  the  better  rule  is  that  the  proper 
remedy  of  a  property  owner  and  tax-payer,  where  munici- 
pal bonds  are  about  to  be  issued  or  sold,  without  authority 
of  law,  is  by  injunction.^  And,  unquestionably,  this  is  so 
where  the  bonds,  although  unauthorized,  will  appear  on 
their  face  to  be  valid  and  be  enforceable  in  the  hands  of 
an  innocent  holder.^  This,  in  some  of  the  cases,  is  put 
upon  the  ground  that  the  execution  and  delivery  of  nego- 
tiable securities  under  such  circumstances  would  work 
irreparable  injury  and  bring  the  case  under  that  head  of 
equity  jurisdiction.* 

The  rule  is  firmly  settled  in  some  of  the  states  that  the 
issuance  of  void  bonds  can  not  be  prevented  by  injunction 
on  the  ground  that  the  tax-payers  will,  by  reason  of  their 
issuance,  be  liable  to  subsequent  taxation  for  an  illegal 
purpose.*  But  this  can  not  be  so,  in  reason,  where  the 
bonds,  when  issued,  will  not  be  void  on  their  face,  but 
will,  as  negotiable  paper,  be  binding  in  the  hands  of  an 
innocent  holder.  Under  such  circumstances  the  only  pro- 
tection the  tax-payer  can  have  is  by  way  of  injunction.^ 

And  if  the  bonds  are  issued  for  an  unauthorized  pur- 
pose, for  example,  for  some  public  or  other  improvement, 
not  connected  with  or  a  part  of  the  corporate  purposes  of 

'  McCoy  V.  Briant,  53  Cal.  247. 

^  Whiting  V.  Sheboygan,  etc.,  R.  R.  Co.,  25  Wis.  167  ;  3  Am.  Rep.  30; 
Judd  V.  Fox  Lake,  28  Wis.  583 ;  Lawson  r.  Schnellen,  33  Wis.  288 ;  Lyncli 
V.  Eastern  LaFayette  &  M.  Ry.  Co.,  51  Wis.  430;  15  N.  W\  Rep.  743;  Gar- 
rigus  I'.  Board  of  Commissioners,  39  Ind.  66;  Supervisors  v.  Mississippi, 
etc.,  R.  Co..  21  111.  337;  Marshall  v.  Silliman,  61  111.  218;  Fowler  v.  City 
of  Superior,  54  N.  W.  Rep.  800. 

3  Judd  V.  Town  of  Fox  Lake,  28  Wis.  583 ;  Sage  v.  Town  of  Fifield,  68 
Wis.  546;  32  N.  W.  Rep.  629;  Crampton  v.  Zabriskie,  lOI  U.  S.  601. 

*  Judd  V.  Town  of  Fox  Lake,  28  Wis.  583. 

'Corwin  v.  Campbell,  45  How.  Pr.  9;  McCoy  v.  Briant,  53  Cal.  247; 
Polly  V.  Hopkins,  74  Tex.  145;  II  S.  W.  Rep.  1084. 

«  Polly  V.  Hopkins,  74  Tex.  145;  II  S.  W.  Rep.  1084. 


608       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

the  municipality  authorizing  their  issue,  the  levy  of  a  tax 
to  pay  them,  or  the  application  of  money  already  collected, 
to  their  payment,  will  be  enjoined.' 

And  whether  the  purpose  for  which  the  bonds  are  issued 
is  a  corporate  one  or  not,  if  the  proceedings  under  which 
they  have  been  issued  are  void,  the  imposition  of  a  tax  to 
pay  them  will  be  enjoined.^ 

Respecting  the  power  to  enjoin  judicial  [»roceedings,  the 
general  rule  is  that  one  court  will  not  interfere  to  prevent 
another  court  of  concurrent  or  co-ordinate  jurisdiction 
from  proceeding  in  a  cause  or  to  control  the  process  of 
such  court.^  And  the  rule  is  applicable,  as  between  the 
state  and  federal  courts.* 

The  right  of  the  federal  courts  to  issue  writs  of  injunc- 
tion to  stay  proceedings  in  the  state  courts  is  limited  by 
statute  to  proceedings  in  bankruptcy.* 

A  court  of  equity  first  acquiring  jurisdiction  may  en- 
join proceedings  in  the  same  matter  in  another  court.^ 
And  an  injunction  may  be. made  to  operate  upon  the  party 
who  is  prosecuting  or  about  to  prosecute  the  action,  on 
equitable  grounds.^  But,  the  right  to  apply  to  the  courts 
for  redress,  is  one  that  can  not,  in  the  absence  of  some 
equitable  ground  for  denying  the  right,  as,  for  example, 
matter  of  estoppel  or  the  like,  be  prevented  by  the  courts, 
however  unfounded  the  claim  for  redress  may  be.* 

1  Livingston  County  v.  Weider,  64  III.  427. 

■i  Bronenburg  v.  Board  of  Commissioners,  41  Ind.  502 ;  Marshall  v.  Silli- 
man,  61  111.  218;  Finney  v.  Lamb,  54  Ind.  1. 

3  Merrill  v.  Lake,  16  Ohio,  373,  404 ;  47  Am.  Dec.  377 ;  Sproehnle  v.  Diet- 
rich, 110  111.  202;  Platto  v.  Deuster,  22  Wis.  482;  Dayton  v.  Eelf,  34  Wis. 
86;  Endter  v.  Lennon,  46  Wis.  299 ;  50  N.  W.  Rep.  194  ;  Orient  Ins.  Co. 
V.  Sloan,  70  Wis.  611 ;  36  N.  W.  Rep.  388  ;  Stein  v.  Benedict,  83  Wis.  603; 
53  N.  W.  Rep.  891. 

*  Logan  V.  Lucas,  59  111.  237  ;  Munson  v.  Harroun,  34  111.  422  ;  85  Am. 
Dec.  316 ;  Sproehnle  v.  Dietrich,  1 10  111.  202 ;  Akerly  v.  Vilas,  15  Wis.  401. 

*  Rev.  Stat.  U.  8.  720;  Dillon  v.  Kansas  City,  43  Fed.  Rep.  109. 
6  Akerly  v.  Vilas,  15  Wis.  401. 

'  Western  R.  R.  Co.  v.  Nolan,  48  N.  Y.  513 ;  Ross  v.  Harper,  99  Mass. 
175 ;  Galveston  H.  &  S.  A.  Ry.  Co.  v.  Dowe,  70  Tex.  5 ;  7  S.  W.  Rep.  368. 

8  Brott  V.  Eager,  28  La.  Ann.  262  ;  Butchers  Ass'n  v.  Cutler,  26  La.  Ann. 
500;  State  v.  Rightor,  39  La.  Ann.  619  ;  2  Sou.  Rep.  385. 


INJUNCTIONS.  609 

But  it  is  held  that  where  a  suit  has  once  Ijeeii  brought 
and  dismissed  the  plaintiff  will  be  enjoined  from  prose- 
cuting a  second  action  for  the  same  cause  until  he  has  paid 
the  costs  in  the  first,  on  the  ground  that  the  second  suit  is 
vexatious.^  And  there  may  be  other  grounds  upon  which 
the  prosecution  of  an  action  may  be  inequitable,  or  upon 
which  it  may  be  held  that  it  is  not  being  prosecuted  in^ 
good  faith,  for  the  redress  of  an  alleged  injury,  and  which 
would  warrant  the  interference  of  a  court  of  equity  to  pre- 
vent the  party  from  proceeding  in  court.^ 

The  foundation  of  equitable  jurisdiction,  in  this  class 
of  cases,  is  that  the  plaintiff  has  equitable  rights  of  which 
he  could  not  avail  himself  in  defense  of  an  action  at  law; 
that  the  prosecution  of  the  suit  at  law  is  inequitable  ;  and 
that  a  court  of  equity  should  interfere  for  his  protection.* 

It  is  held  that  no  powder  exists  in  a  court  of  equity  to 
enjoin  the  prosecution  of  crimes  or  offenses  in  the  common- 
law  courts.*  But  this  statement  may  be  too  broad.  An 
illegal  or  void  statute,  or  ordinance,  may  be  used  as  a  basis 
for  a  multiplicity  of  criminal  prosecutions,  instituted  and 
carried  on  in  bad  faith,  and  which  will  result  in  irrepara- 
ble injury.  If  so,  there  exists  clear  grounds  for  equitable 
interference  by  injunction.*  The  prosecution  of  a  number 
of  civil  suits,  involving  the  same  questions,  may  be  en- 
joined on  like  principles.^  But  the  mere  fact  that  the 
law  under  which  the  prosecutions  are  being  carried  on  is, 
in  the  estimation  of  a  court  of  equity,  invalid,  but  has  not 

1  Kitts  V.  Wilson,  89  Ind.  95. 

'  Galveston  H.  &  S.  A.  Ry.  Co.  v.  Dowe,  70  Tex.  5 ;  7  S.  W.  Rep.  368. 

'  Ross  V.  Harper,  99  Mass.  175. 

*  Suess  V.  Noble,  31  Fed.  Rep.  855 ;  Hemsley  v.  Meyers,  45  Fed.  Rep. 
283 ;  In  re  Sawyer,  124  U.  S.  210 ;  8  Sup.  Ct.  Rep.  482  ;  Crighto  v.  Dah- 
mer,  70  Miss.  602 ;  13  Sou.  Rep.  237. 

»  Poyer  v.  Village  of  Desplaines,  123  111.  Ill ;  13  N.  E.  Rep.  819 ;  Davis 
r.  Fasig,  128  Ind.  271;  27  N.  E.  Rep.  726;  Mayor  v.  Radecke,  49  Md. 
217  ;  33  Am.  Rep.  239. 

«  Galveston  H.  &  S.  A.  Ry.  Co.  v.  Dowe,  70  Tex.  5;  7  S.  W.  Rep.  368 ; 
Cuthbert  v.  Chauvet,  14  N.  Y.  Supl.  62,  385. 

39 


610      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

been  so  declared,  and  a  number  of  sucb  prosecutions  have 
been  instituted  under  it,  does  not  give  the  court  power  to 
enjoin  such  prosecution,  because,  in  such  case,  the  party 
has  an  adequate  remedy  at  law.^ 

If  the  proceeding  is  to  vacate  or  prevent  the  enforce- 
ment of  a  judgment,  a  court  of  equity,  in  such  cases,  pro- 
ceeds upon  purely  equitable  grounds,  and  unless  it  is 
shown  that  the  enforcement  of  the  judgment  would  be 
inequitable,  the  court  will  not  interfore.^  Nor  will  the 
court  interpose  to  prevent  the  enforcement  of  a  judgment 
for  mere  irregularities  or  defects  in  jurisdiction,  or  where 
the  same  appears  to  be  void,  if  the  judgment  debtor  has 
an  adequate  remedy  at  law,  as,  for  example,  by  motion  to 
vacate  the  judgment  or  by  appeal.^ 

So  it  is  held,  generally,  that  a  court  of  equity  will  not 
entertain  a  suit  to  enjoin  a  common  law  proceeding  which 
is  void  for  want  of  jurisdiction,  on  the  ground  that  the  1 
party  against  whom  the  judgment  is  rendered  may  main- 
tain an  action  for  trespass  against  any  officer  who  proceeds 
against  his  property  under  it  as  a  trespasser,  or  contest  the 
jurisdiction  by  certiorari,  and  because  proceedings  under  a 
void  judgment  can  not  work  irreparable  injury.*  But  as 
to  this  the  authorities  are  not  agreed.  In  some  of  the 
cases,  the  jurisdiction  to  enjoin  the  enforcement  of  a  void 
judgment  is  maintained  without  qualification.^     An  officer 

>  Poyer  v.  Village  of  Desplaines,  123  111.  Ill  ;  13  N.  E.  Rep.  819;  Het- 
tinger V.  City  of  New  Orleans,  42  La.  Ann.  629 ;  8  Sou.  Rep.  575. 

2  Thomas  v.  West,  59  Wis.  103;  17  N.  W.  Rep.  684;  Marine  Ins.  Co.  v. 
Hodgson,  7  Cranch,  3.32;  Baragree  v.  Cronkhite,  33  Ind.  192;  Huebsch- 
man  v.  Baker,  7  Wis.  542 ;  Wright  v.  Eaton,  7  Wis.  595 ;  Stokes  v.  Knarr, 
11  Wis.  389. 

3  Thomas  v.  West,  59  Wis.  103;  17  N.  W.  Rep.  684;  Schwab  r.  City  of 
Madison,  49  Ind.  329;  Baragree  v.  Cronkhite,  33  Ind.  192;  Sims  v.  City 
of  Frankfort,  79  Ind.  446;  Stokes  r.  Knarr,  11  Wis.  389. 

♦St.  Louis,  etc.,  Ry.  Co.  v.  Reynolds,  89  Mo.  146;  1  S.  W.  Rep.  208; 
Gillam  v.  Arnold,  32  S.  Car.  503 ;  11  S.  E.  Rep.  331 ;  Crandall  v.  Bacon, 
20  Wis.  639;  91  Am.  Dec.  451. 

*  Earl-r.  Matheney,  60  Ind.  202;  Glass  v.  Smith,  66  Tex.  548;  2  S.  W. 
Rep.  195. 


INJUNCTIONS.  Gil 

may  be  enjoined  from  levying  or  enforcing  an  execution 
against  one  not  a  party  to  the  suit.^ 

Where  a  party  might  have  interposed  the  matter  al- 
leged in  support  of  the  injunction  as  a  defense  in  the  action 
in  which  the  judgment  was  rendered,  and  was  not  pre- 
vented from  doing  so  by  any  fraud  or  other  wrongful  act 
of  the  plaintifi*,  or  by  some  other  cause  which  would  call- 
for  equitable  relief,  such  as  mistake  or  surprise  or  that  the 
facts  are  newly  discovered,  or  if  he  has  made  his  defense 
and  it  has  been  decided  against  him,  however  erroneously, 
there  is  no  ground  for  the  interposition  of  a  court  of 
equity.^  So  where  the  court  is  asked  to  enjoin  legal  pro- 
ceedings before  the  rendition  of  judgment,  the  injunction 
will  not  be  granted  where  the  grounds  therefor  may  be 
used  as  a  defense  in  the  pending  action.^ 

The  rule  is  the  same  where  the  applicant  for  the  injunc- 
tion is  not  a  party  to  the  action  at  law,  but  is  entitled  to 
become  a  party  on  application  and  to  assert  his  rights  in 
such  action.* 

If  a  judgment  has  been  satisfied,  or  the  amount  due 
upon  it  tendered  in  payment,  a  court  of  equity  will  enjoin 
proceedings  upon  it.*  The  right  to  enjoin  the  enforce- 
ment of  judgments  is  sometimes  limited  by  express  statu- 
tory provisions.® 

'  Bishop  r.  Moorman,  98  Ind.  1 ;  49  Am.  Kep.  731 ;  Petry  v.  Ambrosher, 
100  Ind.  510. 

'  Marine  Ins.  Co.  v.  Hodgson,  7  Cranch,  332;  Martin  v.  Orr,  96  Ind. 
27;  High  on  Inj.,  sec.  89;  Marsh  v.  Edgerton,  2  Pinney  (Wis.),  230; 
Wright  V.  Eaton,  7  Wis.  595;  Odum  v.  McMahon,  67  Tex.  292;  3  S.  W. 
Rep.  286.       . 

^  Hartman  v.  Heady,  57  Ind.  545;  Pennoyer  v.  Allen,  50  Wis.  308;  6 
N.  W.  Rep.  887;  Winterfield  v.  Stauss,  24  Wis.  394;  Pardridge  v.  Bren- 
nan,  64  Mich.  575;  31  N.  W.  Rep.  524;  Cohen  v.  L'Engle,  24  Fla.  542;  5 
Sou.  Rep.  235;  11  Sou.  Rep.  47;  Northern  Pac.  R.  Co.  v.  Cannon,  49 
Fed.  Rep.  517;  Dierks  v.  Commissioners,  142  111.  197;  31  N.  E.  Rep.  496; 
New  Orleans,  etc.,  Co.  v.  Lowenstcin,  11  Sou.  Rep.  187;  Michael  v.  City 
of  St.  Louis,  18  S.  W.  Rep.  967;  Joint  School  Dist.  v.  Reid,  82  Wis.  96 ; 
51  N.  W.  Rep.  1089. 

*  Conner  v.  Covington,  etc.,  Ry.  Co.,  19  S.  W.  Rep.  597. 

•''  Bowen  v.  Clark,  46  Ind.  405. 

«  Phillips  V.  Pullen,  45  N.  J.  Eq.  157 ;  16  Atl.  Rep.  915. 


612       COMMON   LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

The  right  of  courts  of  equity,  unless  enlarged  by  stat- 
ute, to  restrain  or  control  the  proceedings  or  acts  of  subor- 
dinate tribunals  or  officers  exists  only  when  such  acts  or 
proceedings  afiect  real  estate,  and  would  lead  to  irrepara- 
ble injury  to  the  freehold,  or  to  the  creation  of  a  cloud 
upon  the  title,  or  where  they  would  lead  to  a  multiplicity 
of  suits.* 

But  where  it  becomes  a  question  of  the  expenditure  of 
public  moneys,  an  injunction  will  lie  to  prevent  the  unau- 
thorized expenditure  of  such  funds  by  a  public  officer;^ 
unless,  as  is  shown  above,  he  is  applying  the  funds  to  pur- 
poses for  which  they  were  raised  by  taxation,  in  which 
case  the  application  of  them  will  be  enjoined  at  the  in- 
stance of  a  tax-payer  only  where  the  enforcement  of  the 
tax  would  have  been  enjoined  and  upon  the  same  equitable 
principles.'  And  the  performance  of  an  act  by  the  com- 
missioners or  supervisors  of  a  county,  or  other  governing 
municipal  body  which  will,  in  the  future,  involve  an  un- 
just burden  of  taxation,  may  be  prevented  by  the  tax- 
payer by  injunction.*  ^ 

>  Montague  v.  Horton,  12  Wis.  599;  Judd  v.  Town  of  Fox  Lake,  28 
Wis.  583 ;  Minnesota,  etc.,  Co.  v.  Palmer,  20  Minn.  468. 

"  To  the  general  rule,  that  the  correction  of  errors,  mistakes,  and 
abuses  in  the  exercise  of  the  powers  of  subordinate  public  jurisdic- 
tions, and  in  the  official  acts  of  public  officers,  is  a  matter  of  legal  and 
not  equitable  cognizance,  three  exceptions  are  recognized  and  estab- 
lished :  First,  where  the  proceedings  in  the  subordinate  tribunal,  or  the 
official  acts  of  public  officers,  will  necessarily  lead  to  a  multiplicity  of 
suits.  Second,  where  they  lead,  in  their  execution,  to  the  irreparable  in- 
jury to  the  freehold.  Third,  where  the  adverse  party's  claim  to  the 
land  is  valid  upon  the  face  of  the  instrument  or  proceedings  sought  to 
be  set  aside,  and  extrinsic  facts  are  necessary  to  be  proved,  in  order  to 
establish  the  invalidity  or  illegality.  Scribner  v.  Allen,  12  Minn.  148 
(Gil.  85),  and  authorities  cited."  Minnesota,  etc.,  Co.  v.  Palmer,  20 
Minn.  468. 

^  City  of  Richmond  v.  Davis,  103  Ind.  449  ;  3  N.  E.  Rep.  130. 

^  Kilbourn  v.  St.  John,  59  N.  Y.  21. 

*  McCord  V.  Pike,  121  111.  288;  12  N.  E.  Rep.  259;  Crampton  v.  Zabris- 
kie,  101  U.  S.  601 ;  Winn  v.  Shaw,  87  Cal.  631 ;  25  Pac.  Rep.  244,  968 ; 
Spilman  v.  City  of  Parkersburg,  35  W.  Va.  605;  14  S.  E.  Rep.  279;  Daven- 
port r.  Kleinschmidt,  6  Mont.  502;  13  Pac.  Rep.  249;  City  of  Valparaiso 
V.  Gardner,  97  Ind.  1 ;  49  Am.  Rep.  416. 


II 


INJUNCTIONS.  613 

In  some  of  the  states  it  is  held  that  county  comissioners 
or  supervisors  can  not  be  enjoined  from  allowing  an  illegal 
claim  against  a  county  or  the  proper  officer  from  issuing  a 
warrant  therefor  or  paying  the  same.^  But  the  doctrine 
is  without  support  in  reason,  and  has  been  repudiated  by 
the  court  by  which  it  was  promulgated,  although  it  is 
said,  in  the  later  case,  that  the  cases  are,  on  the  facts,  dis- 
tinguishable, which  does  not  appear  to  be  so  as  respects 
the  principle  involved.^ 

The  general  rule  is  that  a  court  of  equity  has  no  power 
to  inquire  into  the  proceedings  of  subordinate  tribunals 
of  special  or  local  jurisdiction,  with  a  view  to  set  them 
aside,  if  void  at  law,  or  for  the  purpose  of  staying  or  re- 
straining such  proceedings.^  And  if  an  adequate  remedy 
at  law  exists,  an  injunction  can  not  be  had.^  And  in  any 
event  their  action  can  not  be  prevented  except  upon  a 
showing  that  they  are  acting  without  lawful  authority  or 
beyond  the  scope  of  their  power,^  or  of  fraud,  collusion, 
or  corruption.® 

As  a  rule,  the  courts  can  not  control  official  action  by 
the  executive  or  other  independent  department  of  the 
government  by  an  injunction.^ 

Proceedings  for  an  injunction  can  not  be  used  as  a 
means  of  determining  title  to  an  office,  or  for  the  removal 
of  an  officer,  but  may  be  resorted  to  for  the  protection  of 

^  Linden  v.  Case,  46  Cal.  172 ;  Merriam  v.  Board  of  Supervisors,  72 
Cal.  517;  14  Pac.  Rep.  137. 

MVinn  V.  Shaw,  87  Cal.  631,  636;  25  Pac.  Rep.  244,  968.  See  also 
Crampton  v.  Zabriskie,  101  U.  S.  601 ;  Barry  v.  Goad,  89  Cal.  215 ;  26 
Pac.  Rep.  785. 

*  Thatcher  v.  Dusenbury,  9  How.  Pr.  32;  Western  R.  R.  Co.  v.  Nolan, 
48  N.  Y.  513;  Bouton  v.  City  of  Brooklyn,  7  How.  Pr.  198. 

*  Weber  v.  Timlin,  37  Minn.  274 ;  34  N.  W.  Rep.  29. 

*  Appeal  of  Delaware  County,  119  Pa.  St.  159 ;  13  Atl.  Rep.  62 ;  Murphy 
V.  East  Portland,  42  Fed.  Rep.  308. 

•Zieglerv.  Chapin,  126  N.  Y.  342;  27  N.  E.  Rep.  471;  Union  Steam- 
boat Co.  V.  City  of  Chicago,  39  Fed.  Rep.  723. 

'  Ante,  sec.  29;  Bates  v.  Taylor,  3  Pickle  (Tenn.),  319;  11  S.  W.  Rep. 
266 ;  Fleming  v.  Guthrie,  32  W.  Va.  1 ;  9  S.  E.  Rep.  23;  Smith  v.  Myers, 
109  Ind.  1 ;  9  N.  E.  Rep.  692. 


614        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 


1 


the  possession  of  an  office  in  a  de  facto  officer  whose  title 

is  disputed,  as  well  as  in  case  of  a  dejure  officer.'  I 

The  subject-matter  of  the  jurisdiction  of  a  court  of 
chancery  is  civil  property.^  Therefore  it  has  no  jurisdic- 
tion in  matters  merely  criminal  or  immoral,  not  affecting 
property,'  nor  of  matters  of  a  political  character.^ 

The  jurisdiction  in  this  class  of  cases  is  strictly  in  per- 
sonam, and,  therefore,  where  the  defendant  is  served  with 
process  within  the  jurisdiction  of  the  court,  the  writ  may 
issue  to  prevent  him  from  interfering  with  or  injuring 
property  out  of  the  state.^  ^ 

Temporary  injunctions  or  restraining  orders  may  be  1 
granted  without  notice.  But  in  some  of  the  states  an  in- 
junction can  only  be  made  to  continue  until  notice  to  the 
opposite  party  and  for  a  reasonable  time  within  which  to 
give  such  notice.*  But  notice  may  be  waived  as  in  other 
cases.' 

80.  Mandamus. — The  writ  of  mandamus  was  formerly  a 
common  law  writ.^  In  most  of  the  states  it  is,  at  the  pres- 
ent day,  a  statutory  writ  of  a  common  law  nature,  and  for 
the  enforcement  of  legal,  as  distinguished  from  equitable, 
rights.^  It  was  nominally,  and  in  form,  a  prerogative  writ, 
and  allowable  at  the  discretion  of  the  court,^  but  really 
considered  a  writ  of  right.^ 

And  at  the  present  day  it  has  come  to  be  regarded  and 

^  Guillotte  V.  Poincy,  44  La.  Ann.  333 ;  6  Sou.  Rep.  507 ;  In  re  Sawyer, 
124  U.  S.  210;  8  Sup.  Ct.  Rep.  482. 
"  Sheridan  v.  Colvin,  78  111.  237,  246. 
"  Alexander  v.  Tolleston  Club,  110  111.  65,  77. 

*  City  of  Columbus  v.  Hydraulic  Woolen  Mills  Co.,  33  Ind.  435. 

*  Hardy  v.  Donellan,  33  Ind.  501. 
6  14  Am.  &  Eng.  Enc.  of  Law,  91,  92;  Chumasero  v.  Potts,  2  Mon.  242; 

Tobey  v.  Hakes,  54  Conn.  274;  7  Atl.  Rep.  551. 

'  High  Ext.  Legal  Rem.,  sec.  1. 

8  14  Am.  &  Eng.  Enc.  of  Law,  91,  92;  Bath  County  v.  Amy,  13  Wall. 
244;  Attorney-General  v.  Railroad  Companies,  35  Wis.  425,  513;  People 
V.  Hatch,  33  111.  9 ;  High  Ext.  Leg.  Rem.,  sec.  3. 

»  Kendall  v.  United  States,  12  Pet.  524,  614 ;  Attorney-General  v.  Bos- 
ton, 123  Mass.  460,  471 ;  Rex  v.  Barker,  3  Burr.  1265,  12(37. 


MANDAMUS.  615 

treated,  very  generally,  as  a  writ  of  right.^  A  contrary 
doctrine  is  stated  in  a  very  late  work.^  And  the  preroga- 
tive character  of  the  writ  is  still  maintained  in  some  of 
the  states  for  some  purposes,  and  it  is  still  so  called  in 
some  of  the  cases.^ 

It  is  no  doubt  true  that  it  is  an  extraordinary  remedy, 
in  the  sense  that  it  can  not  be  resorted  to  where  there  is 
an  adequate  remedy  by  other  and  less  summary  means,' 
but  it  does  not  follow  that  it  is,  for  that  reason,  a  preroga- 
tive writ,  issuable  only  at  the  discretion  of  the  court.* 
And  while,  in  some  of  the  cases,  it  is  said  that  it  is  a  pre- 
rogative writ,  and  not  a  writ  of  right,  it  is  treated  in  the 
same  cases  as  a  writ  of  right.^ 

It  is  equally  true  that  for  certain  purposes,  affecting  the 
public  interests,  the  writ  is  essentially  a  prerogative  writ 
when  used  for  such  purposes,  but  when  used  for  the  benefit 
of  a  private  individual,  and  to  enforce  his  rights,  it  has 
none  of  the  elements  of  a  prerogative  writ.^ 

It  is  frequently  said  that  the  issuance  of  the  writ  is 
within  the  discretion  of  the  court/  But  this  is  not  strictly 
true.  Necessarily  it  is  not  true  if  the  writ  is  one  that  may 
be  demanded  as  of  right.  The  better  rule  on  the  subject 
is  that  the  issuance  of  the  writ  is  within  the  legal  discre- 
tion of  the  court,  and  the  action  of  the  court  in  refusing 

'  Kentucky  v.  Dennison,  24  How.  66;  Fisher  r.  City  of  Charleston,  17 
W.  Va.  595;  Union  Pac.  R.  R.  Co.  v.  Hall,  91  U.  S.  343;  Virginia  v. 
Rives,  100  U.  S.  313,  323;  People  v.  Weber,  86  111.  283;  State  v.  Board, 
45  Ind.  501;  Ex  parte  Commissioners,  112  U.  S.  177;  5  Sup.  Ct.  Rep. 
421;  State  v.  Jennings,  56  Wis.  113;  14  N.  W.  Rep.  28;  Wiedwald  v. 
Dodson,  95  Cal.  450;  30  Pac.  Rep.  580  ;  High  Ext.  Leg.  Rem.,  sees.  3,  4,  5. 

^  Elliott's  Appell.  Pro.,  sec.  517. 

^Attorney-General  v.  Railroad  Companies,  35  Wis.  425,  513;  Attorney- 
General  V.  City  of  Eau  Claire,  37  Wis.  400;  Durand  r.  Saginaw  Circuit 
Judge,  76  Mich.  624;  Durand  v.  Gage,  43  N.  W.  Rep.  583;  People  r. 
Common  Council,  78  N.  Y.  56;  Tobey  v.  Hakes,  54  Conn.  274;  7  Atl. 
Rep.  551. 

*  Ex  parte  Commissioners,  112  U.  S.  177 ;  5  Sup.  Ct.  Rep.  421. 

^  People  V.  Common  Council,  78  N.  Y.  56. 

«  State  V.  Jennings,  56  Wis.  113;  14  N.  W.  Rep.  28;  State  r.  Doyle,  40 
Wis.  220. 

'  People  V.  Hatch,  33  111.  9. 


616      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

it  is  subject  to  review,  but  will  not  be  set  aside  except  in  a 
clear  case  of  legal  right  to  the  remedy.^ 

The  statutes  of  the  several  states  providing  for  the  writ 
diifer  somewhat  in  their  language,  but  its  objects  and  pur- 
poses, as  defined  and  limited  by  statutory  provisions,  and 
the  jurisdiction  and  powers  of  the  courts  respecting  it,  are 
essentially  the  same  in  all  of  the  states.^  And  while,  un- 
der the  statutes  the  writ  is,  as  has  been  said,  treated  as  a 
writ  of  right  and  not  as  a  prerogative  writ,  the  causes  for 
and  the  limitations  upon  the  right  to  its  issuance  are  the 
same,  in  all  material  respects,  as  at  common  law,  so  far 
as  the  general  principles  affecting  the  remedy  are  con- 
cerned. 

The  right  to  the  writ  depends  upon  the  nature  and 
character  of  the  act  sought  to  be  enforced,  and  not  upon 
the  kind  of  officer  against  whom  it  runs.^  Therefore,  it 
may  properly  issue  to  enforce  action  by  all  classes  of  pub- 
lic ofiicers,  executive,^  judicial,^  administrative,®  quasi  ju- 
dicial,^ ministerial,^  public  corporations  and  their  officers,' 

1  People  1'.  Chapin,  104  N.  Y.  96;  10  N.  E.  Rep.  141 ;  State  i-.  Board,  45 
Ind.  501 ;  People  v.  Common  Council,  78  N.  Y.  56  ;  Attorney-General  v. 
Boston,  123  Mass.  460,  471. 

2  Kendall  r.  United  States,  12  Pet.  524;  High  Ext.  Leg.  Rem.,  sees. 
8,30. 

^  Ante,  sec.  29;  Kendall  v.  United  States,  12  Pet.  524;  Marbury  v. 
Madison,  1  Cranch,  137,  171 ;  State  v.  Crawford,  28  Fla.  441;  10  Sou.  Rep. 
118. 

*  Ante,  sec.  29 ;  State  v.  Governor,  5  Ohio  St.  528,  534 ;  Chamberlain  v. 
Sibley,  4  Minn.  309 ;  Kendall  v.  United  States,  12  Pet.  524 ;  Kentucky  v^ 
Dennison,  24  How.  66 ;  Board  of  Directors  v.  Wolfiey,  22  Pac.  Rep.  383 ; 
State  V.  Nichols,  42  La.  Ann.  209;  7  Sou.  Rep.  738;  State  v.  Thayer,  31 
Neb.  82;  47  N.  W.  Rep.  704;  Greenwood  Cem.  L.  Co.  v.  Routt,  17  Colo. 
156 ;  28  Pac.  Rep.  1125. 

*  County  of  Cass  r.  Johnston,  95  U.  S.  360;  Virginia  r.  Rives,  100  U. 
S.  313,  323 ;  People  v.  Hallett,  1  Colo.  352  ;  Ex  parte  Burtis,  103  U.  S.  238 ; 
Temple  v.  Superior  Court,  70  Cal.  211 ;  11  Pac.  Rep.  699;  State  v.  District 
Court,  49  N.  J.  L.  537;  13  Atl.  Rep.  43;  Wood  r.  Lenawee  Circuit  Judge, 
84  Mich.  521;  47  N.  W.  Rep.  1103. 

«  State  V.  Crawford,  28  Fla.  441 ;  10  Sou.  Rep.  118. 
'State  V.  County  Court,  33  W.  Va.  589;    11    S.  E.  Rep.  72;  State  v. 
Crites,  48  Ohio  St.  460;  28  N.  E.  Rep.  178. 
8  People  V.  Loucks,  28  Cal.  69 ;  People  r.  Hatch,  33  111.  9. 
s  Village  of  Glencoe  v.  People,  78  111.  382 ;  People  v.  Hester,  6  Cal. 


\ 


MANDAMUS.  617 

private  corporations  and  their  officers,^  and  by  private 
persons^  in  proper  cases.  But  the  primary  office  of  the 
writ  is  to  compel  the  performance  of  a  pubhc  duty,  and 
the  cases  in  which  it  will  run  against  a  private  individual 
are  extremely  rare.^ 

The  legal  right  to  the  performance  of  the  duty  must  be 
clear;*  an  equitable  right  is  not  sufficient;^  there  must  be 
no  adequate  remedy  by  the  ordinary  processes  and  pro- 
ceedings at  law  for  the  failure  to  perform  it;®  and  the  act 
must  be  specific  and  one  which  the  law  imposes  and  leaves 
no  discretion  with  respect  to  its  performance." 

If  the  duty  to  act  is  imposed,  but  the  question  as  to  the 
manner  of  acting,  or  how  the  act  shall  be  done,  or  the 
matter  be  decided,  is  left  to  the  discretion  or  judgment  of 
the  court,  officer,  corporation,  or  person,  action  may  be 
enforced,  but  the  judgment  or  discretion  of  the  tribunal, 

680;  Smalley  v.  Yates,  36  Kan.  519;  13  Pac.  Rep.  845;  Ray  v.  Wilson,  29 
Fla.  342;  10  Sou.  Rep.  613;  Tennant  v.  Crocker,  85  Mich.  328;  48  N.  VV. 
Rep.  577;  Attorney-General  v.  Boston,  123  Mass.  460,  470. 

1  Cross  V.  West  Ya.,  etc.,  Ry.  Co.,  35  W.  Ya.  174;  12  S.  E.  Rep.  1071 ; 
Ohio  &  M.  Ry.  Co.  r.  People,  121  111.  483 ;  13  N.  E.  Rep.  236 ;  State  v. 
Trustees,  etc.,  114  Ind.  389;  16  N.  E.  Rep.  808;  Central  Union  Tel.  Co. 
r.  State,  118  Ind.  194;  19  N.  E.  Rep.  604;  City  Council  r.  Capital  City 
Water  Co.,  92  Ala.  361 ;  9  Sou.  Rep.  339;  State  r.  Jacksonville  St.  R.  Co., 
29  Fla.  590;  10  Sou.  Rep.  590;  Slemmons  r.  Thompson,  31  Pac.  Rep.  514; 
Haugen  v.  Albina  L.  &  W.  Co.,  21  Or.  411 ;  28  Pac.  Rep.  244;  Combs  v. 
Agricultural  Ditch  Co.,  28  Pac.  Rep.  966. 

*  State  V.  Shearer,  29  Keb.  477 ;  45  N.  W.  Rep.  784  ;  People  v.  Williams, 
33  N.  E.  Rep.  849;  Nye  v.  Rose,  17  R.  I.  733;  24  Atl.  Rep.  777. 

*  Nye  V.  Rose,  17  R.  I.  733;  24  Atl.  Rep.  777. 

*  People  I'.  Hatch,  33  111.  9;  People  v.  District  Court,  14  Colo.  396;  24 
Pac.  Rep.  260;  Smalley  v.  Yates,  36  Kan.  519 ;  13  Pac.  Rep.  845;  People 
(.  Board  of  State  Canvassers,  129  N.  Y.  360;  29  N.  E.  Rep.  345;  Post  v. 
Sparta,  63  Mich.  .323;  29  N.  W.  Rep.  721. 

5  Burnsville  Tp.  Co.  v.  State,  119  Ind.  382;  20  N.  E.  Rep.  421. 

«  Kendall  v.  United  States,  12  Pet.  524;  State  v.  McGown,  89  Mo.  156; 
1  S.  W.  Rep.  208;  People  v.  Wiant,  48  111.  263;  People  r.  Hatch,  33  111. 
9 ;  State  v.  Buhler,  90  Mo.  560 ;  3  S.  W.  Rep.  68. 

'  Napa  Valley  R.  Co.  v.  Napa  County,  30  Cal.  435 ;  People  v.  District 
Court,  14  Colo.  396;  24  Pac.  Rep.  260;  People  r.  AVhipple,  41  Mich.  548; 
49  N.  W.  Rep.  922 ;  Northern  Pac.  R.  Co.  v.  Territory  of  Washington, 
142  U.  S.  492;  12  Sup.  Ct.  Rep.  283;  High  Ext.  Leg.  Rem.,  sec.  25. 


618       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

officer,  or  person,  as  to  how  it  shall  be  done,  can  not  be 
controlled.^ 

Nor  can  the  writ  be  used  as  a  writ  of  error,  or  for  the 
purpose  of  reversing  or  setting  aside  a  decision  rendered 
by  an  inferior  court  or  tribunal  in  the  exercise  of  its  legit- 
imate jurisdiction.^ 

But  this  rule  is  not  without  exception,  as  the  writ  is  al- 
lowed to  vacate  or  set  aside  a  non-appealable  order  or  to 
reverse  a  proceeding  from  which  there  is  no  appeal.^  And 
some  of  the  cases  seem  to  go  still  further  than  this.^  But 
whatever  the  nature  of  the  office  or  the  powers  and  du- 
ties of  the  officer,  corporation,  or  person,  the  writ  can 
issue  only  to  enforce  the  performance  of  some  duty  grow- 
ing out  of  the  official  position  or  station  of  such  officer, 
corporation,  or  person.^ 

The  general  rule  that  the  discretion  of  the  lower  court 
or  tribunal  can  not  be  controlled  by  mandamus  is  subject 
to  qualification.  It  is  now  pretty  w^ell  settled  that  the 
writ  will  issue  upon  a  showing  of  an   abuse  of  discretion 

1  Newlin  v.  Indiana  County,  123  Pa.  St.  541 ;  16  Ail.  Rep.  737 ;  Dechert 
^'.  Commonwealth,  113  Pa.  St.  229;  6  Atl.  Rep.  229 ;  Virginia  r.  Rives, 
100  U.  S.  313;  Ex  parte  Burtis,  103  U.  S.  238;  Ex  parte  Flippin,  94  U.  S. 
348;  State  v.  Board,  45  Ind.  501 ;  People  v.  District  Court,  14  Colo.  396; 
24  Pac.  Rep.  260;  State  r.  Parish  of  St.  Bernard,  39  La.  Ann.  759;  2  Sou. 
Rep.  305;  Shine  v.  Kentucky  Cent.  Ry.  Co.,  85  Ky.  177;  3  S.  W.  Rep. 
18;  Ex  parte  Parker,  120  U.  S.  737;  7  Sup.  Ct.  Rep.  767 ;  131  U.  S.  221; 
9  Sup.  Ct.  Rep.  708;  Ex  parte  Hayes,  92  Ala.  120;  9  Sou.  Rep.  156 ;  State 
-v.  Neville,  110  Mo.  345;  19  S.  W.Rep.  491;  Miller  v.  County  Court,  34 
W.  Va.  285;  12  S.  E.  Rep.  702;  High  Ext.  Leg.  Rem.,  sees.  24,  42. 

2  Ex  parte  Flippin,  94  U.  S.  348;  Ex  parte  Burtis,  103  U.  S.  238;  Ex 
parte  Railway  Co.,  101  U.  S.  711,  720;  People  v.  District  Court,  14  Colo. 
396;  24  Pac.  Rep.  260;  Scott  v.  Superior  Court,  75  Cal.  114;  16  Pac.  Rep. 
547;  Ex  parte  Hurn,  92  Ala.  102;  9  Sou.  Rep.  515;  State  v.  Barnes,  25 
Fla.  298;  5  Sou.  Rep.  722;  Attorney-General  v.  Daboll,  90  Mich.  272;  51 
N.  W.  Rep.  280. 

^  Chastain  v.  Armstrong,  85  Ala.  215;  3  Sou.  Rep.  788;  Ex  parte 
Barnes,  84  Ala.  540;  4  Sou.  Rep.  769;  Palmer  v.  Jackson  Circuit  Court, 
90  Mich.  1;  50  N.  W.  Rep.  1086;  Richardson  v.  Farrar,  88  Va.  760;  15 
S.  E.  Rep.  117;  Ex  parte  Washington  &  G.  R.  Co.,  140  U.  S.  91 ;  11  Sup. 
Ct.  Rep.  673. 

3  Lindsay  v.  Judges,  63  Mich.  735;  30  N.  W.  Rep.  590;  Brown  r.  Kala- 
mazoo Circuit  Judge,  75  Mich.  274;  42  N.  W.  Rep.  827. 

^  Kendall  v.  United  States,  12  Pet.  524;  People  r.  Hatch,  33  111.  9. 


MANDAMUS.  G19 

where  the  act  to  be  done  rests  in  the  legal  discretion  of 
of  the  court  or  officer  proceeded  against.^ 

The  rule  that  the  writ  can  not  issue  where  there  is  an 
adequate  remedy  by  the  ordinary  proceedings  at  law,  is 
not  uniformly  enforced  where  the  writ  is  sought  against 
ministerial  officers.^  But  the  fact  that  the  party  has  by 
neglect  lost  his  right  to  resort  to  an  appeal,  or  other  rem- 
edy, will  not  entitle  him  to  the  writ.' 

It  is  not  sufficient  to  defeat  the  writ  that  the  party  ap- 
plying for  it  has  another  remedy.  Such  other  remedy 
must  be  efficient  and  adequate.* 

In  some  of  the  states  it  is  expressly  provided  by  statute 
that  the  writ  shall  not  be  denied  because  of  the  fact  that 
the  petitioner  has  another  specific  legal  remedy.^  But  the 
rule,  independent  of  any  statutory  provision  on  the  sub- 
ject, is  the  other  way,  and  it  has  not  generally  been 
changed  by  statute. 

The  writ  can  not  issue  for  the  enforcement  of  an  obli- 
gation arising  out  of  contract  or  atiecting  a  mere  private 
right  not  involving  any  trust  or  official  duty.®  Nor  can  it 
issue  to  compel  action  on  the  part  of  a  corporation,  public 

^  Village  of  Glencoe  v.  People,  7<S  111.  382;  Raisch  r.  Board  of  Educa- 
tion, 81  Cal.  542;  22  Pac.  Rep.  890;  Lindsay  v.  Judges,  63  Mich.  735  ;  30 
N.  W.  Rep.  590;  City  of  Detroit  v.  Hosmer,  79  Mich.  384 ;  44  N.  W.  Rep. 
622 ;  People  v.  Board  of  Supervisors,  33  N.  E.  Rep.  827 ;  City  of  Huron 
V.  Campbell,  53  N.  W.  Rep.  182. 

^  Bidleman  v.  Brooks,  28  Cal.  72. 

3  State  V.  Buhler,  90  Mo.  560;  3  S.  W.  Rep.  68. 

*  Babcock  v.  Goodrich,  47  Cal.  488,  508  ;  Raisch  r.  Board  of  Education, 
81  Cal.  542 ;  22  Pac.  Rep.  890 ;  McLeod  v.  Scott,  21  Or.  94  ;  26  Pac.  Rep. 
1061 ;  State  v.  Murphy,  19  Nev.  89 ;  6  Pac.  Rep.  840 ;  Gaines  r.  Cald- 
well, 148  U.  S.  228;  13  Sup.  Ct.  Rep.  611  ;  High  Ex.  Legal  Rem.,  sees. 
17,  18,  20. 

5  Ohio  &  M.  Ry.  Co.  v.  People,  121  111.  483  ;  13  N.  E.  Rep.  236  ;  People 
V.  Commissioners,  22  N.  E.  Rep.  596. 

*  State  V.  Turnpike  Co.,  16  Ohio  St.  308 ;  State  r.  Board,  45  Ind.  501 ; 
Tobey  v.  Hakes,  54  Conn.  274  ;  7  Atl.  Rep.  551 ;  State  v.  City  of  Kansas 
City,  38  Kan.  593;  17  Pac.  Rep.  185;  State  v.  Trustees,  114  Ind.  389 ;  16 
N.  E.  Rep.  808;  People  v.  Board  of  Education,  15  N.  Y.  Supl.  .308; 
Florida  Cent.  &  P.  R.  Co.  v.  State,  31  Fla.  482 ;  13  Sou.  Rep.  103 ;  High 
Ext.  Legal  Rem.,  sec.  25. 


620      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

or  private,  or  its  officers,  where  the  duty  to  act  is  not  im- 
posed by  law,  but  is  a  mere  contractual  obligation/ 

It  is  generally  said  that  only  ministerial  duties  can  be 
enforced  by  mandamus.^  In  one  sense  this  is  true,  because 
it  is  usually  ministerial  duties  about  which  no  discretion  or 
judgment  is  required  or  can  be  exercised.^  But  the  writ 
is  just  as  applicable  for  the  enforcement  of  judicial  or  other 
official  duties,  with  the  limitation  above  stated  as  to  the 
power  to  control  the  discretion  of  the  court  or  officer  witii 
respect  to  the  manner  of  doing  the  act  or  how  the  ques- 
tion to  be  acted  upon  shall  be  decided.^ 

Thus  a  court  may,  by  mandamus,  be  compelled  by  a 
higher  court  to  act  in  a  matter  purely  judicial,  involving 
the  decision  of  causes  or  questions  growing  out  of  them, 
but  it  can  not  be  compelled  to  decide  any  question  which 
such  court  has  the  power  to  determine  in  any  particular 
way,*  nor  compel  the  court  to  rehear  a  cause  that  it  has  al- 
ready decided.^  Therefore  a  judge  who  declines  to  act  at 
all,  on  the  ground  that  he  is  disqualified,  or  that  the  court 
has  not  jurisdiction,  may,  upon  a  shoveing  that  he  is  not 
legally  disqualified,  or  that  the  court  has  jurisdiction,  be 
compelled  to  proceed  in  a  cause.® 

1  State  V.  Trustees,  114  Ind.  389  ;  16  N.  E.  Rep.  808;  State  v.  City  of 
Kansas  City,  38  Kan.  593  ;  17  Pac.  Rep.  185;  People  v.  Board  of  Educa- 
tion, 15  N.  Y.  Supl.  308. 

*  Ante  sec.  29. 

'  Ante  sec.  29;  Kendall  v.  United  States,  12  Pet.  524;  Virginia  v.  Rives, 
100  U.  S.  313 ;  Temple  v.  Superior  Court,  70  Cal.  211 ;  11  Pac.  Rep.  699  ; 
People  V.  District  Court,  14  Colo.  396 ;  24  Pac.  Rep.  260 ;  Ex  parte  Parker, 
120  U.  S.  737 ;  7  Sup.  Ct.  Rep.  767 ;  131  U.  S.  221 ;  9  Sup.  Ct.  Rep.  708 ; 
State  V.  Crawford,  28  Fla.  441 ;  10  Sou.  Rep.  118;  State  v.  Murphy,  19  Nev. 
89 ;  6  Pac.  Rep.  840. 

*  Newlin  v.  Indiana  County,  123  Pa.  St.  541 ;  16  Atl.  Rep.  737;  People 
V.  District  Court,  14  Colo.  396;  24  Pac.  Rep.  260;  Commonwealth  ('. 
McLaughlin,  120  Pa.  St.  518;  14  Atl.  Rep.  377  ;  State  v.  Murphy,  41  La. 
Ann.  526;  6  Sou.  Rep.  816. 

*  State  V.  Monroe,  39  La.  Ann.  664 ;  2  Sou.  Rep.  215. 

«  Ante  sec.  62,  pp.  408,  411 ;  Ex  parte  State  Bar  Ass'n,  92  Ala.  113  ;  8 
Sou.  Rep.  768;  Temple  v.  Superior  Court,  70  Cal.  211 ;  11  Pac.  Rep.  699; 
Beguhl  V.  Swan,  39  Cal.  411 ;  People  v.  Swift,  59  Mich.  529;  Prosecuting 
Attorney  v.  Judge,  26  N.  W.  Rep.  694 ;  State  v.  Ellis,  41  La.  Ann.  41 ;  6 
Sou.  Rep.  55 ;  Ex  parte  Parker,  120  U.  S.  737 ;  7  Sup.  Ct.  Rep.  767 ;  State 


MANDAMUS.  621 

So,  where  a  special  judge  refuses  to  act  on  the  ground 
that  the  regular  judge  is  not  disqualiHed/  or  a  court  re- 
fuses to  take  jurisdiction  of  a  cause  sent  to  it  upon  change 
of  venue  on  the  ground  that  the  change  was  not  properly 
tuken.^ 

So  a  court  may  be  compelled  by  mandamus  to  dismiss 
an  appeal  from  an  order  not  appealable,^  or  to  impose  sen- 
tence in  a  criminal  case/  or  to  allow  an  appeal  where  the 
party  is  entitled  thereto  and  has  properly  applied  therefor;^ 
but  not  where  the  granting  of  the  appeal  is  within  the  dis- 
cretion of  the  court  f  or  to  vacate  a  decree  rendered  with- 
out a  hearing  and  hear  the  cause  on  its  merits  f  or  to 
entertain  an  appeal  properly  taken  f  or  to  enter  a  proper 
judgment  upon  a  decision  rendered  and  enforce  it  by  exe- 
cution.' 

But  it  is  held  that  where  an  appeal  has  been  dismissed 
upon  a  hearing,  although  upon  the  ground  of  want  of 
jurisdiction,  if  wrongly  dismissed,  the  action  of  the  court 
is  a  mere  error  which  can  not  be  remedied  by  mandamus."' 
This  may  be  the  correct  rule  where  the  question  turns 
upon  some  fact  to  be  ascertained  and  determined  by  the 
court,  affecting  its  jurisdiction  to  entertain  the  appeal,  or 

V.  Eddy,  10  Mont.  311 ;  25  Pac.  Rep.  1032 ;  State  v.  Field,  107  Mo.  445 ;  1 7 
S.  W.  Rep.  896;  State  v.  Young,  31  Fla.  594;  12  Sou.  Rep.  673;  State  v. 
Hunter,  3  Wash.  St.  92;  27  Pac.  Rep.  1076. 

1  Ante  Bee.  61,  p.  395;  Schultz  v.  McLeary,  73  Tex.  92 ;  11  S.  W.  Rep. 
924  ;  Ex  parte  Parker,  120  U.  S.  737 ;  7  Sup.  Ct.  Rep.  767;  131  U.  S.  221 ; 
9  Sup.  Ct.  Rep.  708. 

^  State  V.  O'Bryan,  102  Mo.  254;  14  S.  W.  Rep.  933. 

'  Palmer  v.  Jackson  Circuit  Judge,  90  Mich.  1 ;  50  X.  W.  Rep.  1086. 

*  People  V.  Court  of  Sessions,  19  N.  Y.  Supl.  508. 

5  State  V.  Murphy,  41  La.  Ann.  526;  6  Sou.  Rep.  816. 

«  Smith  V.  Reilly,  82  Mich.  93;  45  N.  W.  Rep.  1122. 

'  Brown  v.  Kalamazoo  Circuit  Judge,  75  Mich.  274 ;  42  N.  ^y.  Rep.  827. 

8  Ex  parte  Parker,  120  U.  S.  737 ;  7  Sup.  Ct.  Rep.  767 ;  131  U.  S.  221 ;  9 
Sup.  Ct.  Rep.  708. 

3  State  V.  Engle,  127  Ind.  457  ;  26  N.  E.  Rep.  1077  ;  Anderson  v.  Pennie, 
32  Cal.  266. 

1"  People  V.  Garnett,  130  111.  340 ;  23  N.  E.  Rep.  331 ;  Treadway  i'. 
Wright,  4  Nev.  119;  People  r.  Weston,  28  Cal.  640.  See,  also,  State  v. 
Neville,  110  Mo.  345;  19  S.  W.  Rep.  491. 


I 


622      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

where  the  dismissal  is  upon  a  hearing  on  the  merits,^  but 
not  otherwise.  If  it  is  a  pure  question  of  hiw,  and  the 
court  holds  that  it  has  not  jurisdiction  of  the  cause,  and  ii 
for  that  reason  dismisses  the  appeal,  thus  depriving  the 
party  of  a  hearing,  the  clear  weight  of  authority  and  rea- 
son is  to  the  effect  that  the  court  may  be  required,  by 
mandamus,  to  vacate  the  order  dismissing  the  appeal,  and 
proceed  with  the  hearing.  It  is  nothing  more  nor  less 
than  a  refusal  to  proceed  in  the  action,  and  is  within  the 
general  rule  above  laid  down  that  where  a  court  refuses  to 
act  on  the  ground  that  it  has  not  jurisdiction  it  may  be 
compelled  to  do  so.^ 

The  cases  given  in  which  inferior  courts  will  be  co- 
erced to  act  are  stated  merely  as  illustrative  of  the  gen- 
eral rule  on  the  subject,  and  as  tending  to  show  to  what 
extent  the  superior  courts  may  go  in  such  cases,  not  with 
a  view  of  stating,  in  detail,  the  particular  cases  in  which 
such  power  may  be  exercised. 

The  regular  judge  may  be  compelled,  by  mandamus,  to 
give  way  to  a  special  judge  where  such  regular  judge  is 
disqualified,*  or  to  certify  the  cause  to  another  court 
where  the  law  requires  it.* 

If  the  act  is  one  about  which  the  court  or  judge  can 
have  no  discretion,  or  is  not  called  upon  or  permitted 
to  exercise  its  or  his  judgment,  the  act,  although  to  be 
performed  by  a  court  or  judicial  officer,  is  essentially 
a  ministerial  act  which  may  be  enforced,  absolutely,  as 
in  case  of  a  purely  ministerial  duty.     And  this  same  rule, 

»  Morrison  r.  District  Court,  147  U.  S.  14;  13  Sup.  Ct.  Rep.  246. 

'  In  the  case  of  Ex  parte  Parker,  above  cited,  the  supreme  court  of 
Washington  Territory  had  decided,  upon  a  hearing,  that  the  appeal  had 
not  been  properly  taken,  and  that,  therefore,  it  had  no  jurisdiction.  But 
the  supreme  court  of  the  United  States  held  that  mandamus  was  the 
proper  remedy.  And  the  distinction  between  a  case  where  the  court 
has  taken  jurisdiction,  and  subsequently  dismisses  the  appeal,  and  one 
where  it  decides,  at  the  outset,  that  it  has  not  jurisdiction,  and  for  that 
reason  refuses  to  entertain  the  appeal,  is  clearly  pointed  out.  See,  also, 
as  bearing  upon  the  question,  generally,  State  v.  Field,  107  Mo.  445;  17 
S.  W.  Rep.  896. 

=  Ante  sec.  62,  p.  411 ;  State  v.  Judge,  39  La.  Ann.  994 ;  3  Sou.   Rep.  91. 

*  Graham  r.  People,  111  111.  253. 


MAN'DAML'S.  623 

and  the  distinctions  between  purely  ministerial,  and  other 
acts  involving  judgment  and  discretion  and  the  limita- 
tions upon  the  enforcement  of  the  latter,  are  applicable 
to  other  departments  of  government  as  well  as  to  the  ju- 
dicial department.^ 

If  the  duty  to  act  is  imperative,  no  matter  what  the 
character  of  the  act  may  be,  action  may  be  enforced.  But 
if  the  discretion  allowed,  or  the  judgment  to  be  exercised 
is  as  to  whether  the  court,  officer,  or  person  shall  act  at  all 
or  not,  and  not  as  to  the  manner  of  doing  it,  the  writ  can 
not  be  used  to  enforce  action  in  any  form,  because  that 
would  be  to  control  the  judgment  or  discretion  of  another 
court  or  officer  which  is  never  allowed.^ 

Ministerial,  judicial,  legislative,  and  executive  duties 
have  been  defined  and  the  distinctions  respecting  them 
pointed  out  in  another  section.^  The  extent  to  which  the 
courts  may  go  in  enforcing  action  by  officers  of  the  execu- 
tive department  has  also  been  considered.^  It  is  held  in 
some  of  the  states  that  the  courts  have  no  such  power, 
even  in  case  of  ministerial  duties.*  But  the  great  weight 
of  the  authorities  is  undoubtedly  to  the  effect  that  where 
purely  ministerial  duties  are  imposed  by  law  upon  execu- 
tive officers,  such  duties  may  be  enforced  by  the  courts.^ 

The  most  difficult  question  for  the  courts  in  such  cases 
is  to  determine  what  are  and  what  are  not  such  minis- 
terial acts  of  executive  officers  as  are  within  the  control 

^  Ante  sec.  29 ;  Kendall  v.  United  States,  12  Pet.  524. 

'^Ante  sec.  29;  Bledsoe  v.  Int.  R.  R.  Co.,  40  Tex.  556;  Xewlin  v.  Indi- 
ana County,  123  Pa.  St.  541 ;  16  Atl.  Rep.  737 ;  State  v.  Parish  of  St.  Ber- 
nard, 39  La.  Ann.  759  ;  2  Sou.  Rep.  305  ;  Willard  v.  Superior  Court,  82 
Cal.  456 ;  22  Pac.  Rep.  1120 ;  State  v.  Murphy,  41  La.  Ann.  526 ;  6  Sou. 
Rep.  816;  People  v.  Court  of  Sessions,  19  N.  Y.  Supl.  508;  People  v. 
Maher,  19  N.  Y.  Supl.  758;  States.  Murphy,  19  Nev.  89;  6  Pac.  Rep.  840. 

^  Ante  sec.  29. 

*  Rice  V.  Austin,  19  Minn.  103  ;  18  Am.  Rep.  330 ;  State  r.  Whitcombe, 
28  Minn.  50;  8  N.  W.  Rep.  902;  State  v.  Braden,  40  Minn.  174;  41  N.  W. 
Rep.  817;  Hovey  v.  State,  127  Ind.  588;  27  N.  E.  Rep.  175. 

'  See  the  authorities  cited  above  in  this  section  and  section  29  ante, 
where  the  authorities  on  the  subject  are  reviewed.  See  also  State  v. 
Warmouth,  22  La.  Ann.  1  ;  State  v.  Board  of  Liquidation,  42  La.  Ann. 
647 ;  7  Sou.  Rep.  706 ;  State  v.  Xicholls,  42  La.  Ann.  209 ;  7  Sou.  Rep.  738. 


G24       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

of  the  courts/  The  writ  is  frequently  used  to  enforce  the 
payment  of  amounts  due  from  public  corporations,  and  ro 
compel  the  proper  authorities  to  levy  a  tax  for  such  pur- 
pose. But  it  can  not  be  so  used  for  the  collection  of  a 
simple  debt  from  a  municipal  corporation  which  may  be 
enforced  in  an  ordinary  action.^ 

In  the  federal  courts  a  judgment  for  the  amount 
claimed  must  first  be  obtained  and  the  mandamus  is 
treated  as  in  efifect  an  execution  to  enforce  the  judgment.^ 
The  general  rule  is  that  the  writ  will  not  be  awarded  to 
try  the  title  to  an  ofiice.*  A  difterent  rule  is  maintained, 
however,  in  some  of  the  states.^  And  it  may,  in  a  proper 
case,  be  used  to  compel  the  restoration  to  office  of  a  right- 
ful incumbent  who  has  been  deprived  thereof  by  removal 
or  suspension,^  or  to  enforce  the  delivery  of  the  possession 
of  an  office  and  of  the  books,  papers  and  property  per- 
taining thereto,^  or  to  compel  the  delivery  of  a  certificate 
of  election.^ 

So  an  attorney  who  has  been  suspended  from  practice 
by  a  void  judgment  may  be  restored  by  mandamus.^  And 
one  who,  possessing  the  necessary  qualifications,  has  been 

'  State  V.  Board  of  Liquidation,  42  La.  Ann.  647 ;  7  Sou.  Rep.  706 ; 
State  r.  Mason,  43  La.  Ann.  590;  9  Sou.  Rep.  776. 

-  State  V.  City  of  Kansas  City,  38  Kan.  593;  17  Pac.  Rep.  185. 

^  County  of  Greene  v.  Daniel,  102  U.S.  187,  195;  Davenport  v.  County 
of  Dodge,  105  U.  S.  237 ;  United  States  v.  Johnson  County,  6  Wall.  166  ; 
Aylesworth  w.  Gratiot  County,  43  Fed.  Rep.  350;  Aspinwall  i'.  County 
Commissioners,  2  Fed.  Cases,  67  ;  Stewart  v.  Justices  of  St.  Clair  Co. 
Court,  47  Fed.  Rep.  482. 

*  Ex  parte  Lusk,  82  Ala.  519;  2  Sou.  Rep.  140;  State  v.  Palmbeck,  36 
Neb.  401 ;  54  N.  W.  Rep.  667. 

*  Luce  V.  Board  of  Examiners,  153  Mass.  108;  26  N.  E.  Rep.  419; 
Keough  V.  Board  of  Aldermen,  156  Mass.  403;  31  N.  E.  Rep.  387. 

®  Ex  parte  Lusk,  82  Ala.  519;  2  Sou.  Rep.  140;  State  v.  Shakespeare, 
43  La.  Ann.  92  ;  8  Sou.  Rep.  893. 

'  State  V.  Gates,  57  N.  W.  Rep.  296 ;  Huffman  v.  Mills,  39  Kan.  577 ;  18 
Pac.  Rep.  516;  Driscoll  v.  Jones,  1  S.  Dak.  8;  44  N.  W.  Rep.  726;  State 
V.  Mayor,  52  N.  J.  Law,  332 ;  19  Atl.  Rep.  780 ;  State  v.  May,  106  Mo. 
488;  17  S.  W.  Rep.  660;,  Strong,  Petitioner,  37  Mass.  484,  495. 

8  Strong,  Petitioner,  37  Mass.  484,  496. 

MValls  V.  Palmer,  64  Ind.  493;  State  v.  Finley,  30  Fla.  302;  11  Sou. 
Rep.  500. 


MANDAMUS.  625 

elected  to  an  office  may  be  compelled  by  mandamus  to 
accept  the  same.^ 

The  federal  circuit  and  district  courts  have  no  jurisdic- 
tion to  issue  the  writ  as  an  original  proceeding,  nor  at  all 
except  when  necessary  to  the  exercise  of  their  jurisdic- 
tions.^ But  while  the  circuit  courts  of  the  United  States 
have  no  original  jurisdiction  to  award  the  writ,  and  thei-r 
power  to  award  the  same  is  purely  ancillary,  they  are  not 
confined  in  awarding  it  to  parties  to  the  judgment  to  be 
enforced.^  Jurisdiction  to  issue  the  writ  does  exist  in  the 
supreme  court  of  the  District  of  Columbia  in  cases  in  which 
parties  are,  by  the  common  law,  entitled  to  it.* 

The  power  to  issue  the  writ  is  given  in  most  of  the  states 
to  appellate  courts.  But  in  some  of  the  states  the  power 
can  only  be  used  in  the  exercise  of  the  appellate  jurisdic- 
tion of  the  court,^  in  others  only  in  specified  cases,^  or,  in 
some  of  the  states,  as  a  prerogative  writ  aifecting  matters 
of  public  concern,  and  not  for  the  enforcement  of  mere 
private  rights.'^  But  in  other  states  appellate  courts  are 
given,  by  the  constitution,  control  and  supervision  overall 
inferior  courts,  and  the  jurisdiction  thus  granted  is  held  to 
be  exclusive,*  or,  if  not  exclusive,  original  and  not  limited 
to  courts  from  which  appeals  may  be  taken  to  such  courts.^ 

»  People  V.  Williams,  145  111.  573 ;  33  N.  E.  Rep.  849. 

'  Bath  County  v.  Amy,  13  Wall.  244;  M'Intire  v.  Wood,  7  Cranch,  504 
M'Clung  V.  Silliman,  6  Wheat.  601;  Graham  r.  Norton,  15  Wall.  427 
Rev.  Stat.  U.  S.,  sec.  716;  United  States  r.  Johnson  County,  6  Wall.  166 
In  re  Vintschger,  50  Fed.  Rep.  459;  High  Ext.  Legal  Rem.,  sec.  29. 

3  Labette  County  v.  United  States,  112  U.  S.  217;  5  Sup.  Ct.  Rep.  108. 

*  United  States  v.  Schurz,  102  U.  S.  378,  394. 

5  Elliott  App.  Pro.,  sees.  511,  516;  Central  R.  &  B.  Co.  v.  Miller,  16  S. 
E.  Rep.  256;  Grigsby  v.  Bowles,  79  Tex.  138;  15  S.  W.  Rep.  30. 

« State  V.  Clay,  3  Wyo.  393 ;  31  Pac.  Rep.  409. 

'  Ante,  sec.  79 ;  Attorney-General  v.  Railway  Companies,  35  Wis.  425 ; 
Attorney-General  v.  City  of  Eau  Claire,  37  Wis.  400. 

«  State  V.  Judge,  39  La.  Ann.  97;  1  Sou.  Rep.  281. 

'  State  V.  Kansas  City  Court  of  Appeals,  97  Mo.  331 ;    10  S.  W.  Rep. 
855;   State  v.  Tracy,  94  Mo.  217;   6  S.  W.  Rep.  709;   City  of  Huron  r. 
Campbell,  53  N.  W.  Rep.  182;   Attorney-General  v.  Boston,  123  Mass. 
460,  471 ;  Strong,  Petitioner,  37  Mass.  484,  495. 
40 


620       COMMUM   LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

A  more  limited  rule  has  been  laid  down  in  some  of  the 
states,  the  power  of  the  appellate  courts  being  confined  to 
matters  directly  afiecting  the  proper  discharge  of  their 
duties  as  such  appelhite  courts.*  A  grant  of  appellate 
jurisdiction  vests  the  court  with  no  power  to  issue  writs 
of  mandamus  except  in  aid  of  such  jurisdiction.^ 

An  appellate  court,  like  any  other,  has  the  inherent 
power  to  compel  compliance  with  its  mandates,  and  to  en- 
force its  authority  by  mandamus  in  proper  cases.^  And 
this  is  a  right  of  which  it  can  not  be  deprived  by  statute.* 

It  is  a  right  which,  in  the  courts  of  last  resort,  extends 
to  a  general  supervision  and  control  over  inferior  courts 
and  tribunals  within  their  jurisdiction,  and  from  which  an 
appeal  will  lie  to  such  courts.^ 

This  is  for  the  reason  that  every  obstacle  to  the  trial 
and  disposition  of  a  cause  in  the  lower  courts  has  the 
effect  to  delay  or  prevent  a  hearing  and  decision  by  the 
appellate  court.^ 

It  has  been  held  that,  where  an  appellate  court  is  given 
common-law  jurisdiction  by  the  constitution,  this  general 
grant  vests  the  court  with  power  to  issue  writs  of  man- 
damus, and  that  the  power,  being  constitutional,  can  not 
be  taken  away  by  statute.^ 

^  State  V.  Biddle,  36  Ind.  138.  It  is  said  by  the  learned  authors  in 
Elliott's  Appellate  Procedure,  in  commenting  upon  the  case  just  cited, 
that  it  is  in  conflict  with  State  v.  Board,  45  Ind.  501,  and  Moore  v.  State, 
72  Ind.  358 ;  but  this  does  not  seem  to  be  so,  as  in  neither  of  the  cases 
referred  to  was  the  application  for  the  writ  to  the  appellate  court,  nor 
was  any  question  presented  respecting  the  jurisdiction  of  that  court  to 
issue  the  writ.  Both  of  the  cases  were  on  appeal  from  a  judgment  in  a 
lower  court  in  a  proceeding  for  a  mandamus. 

2  Hawes  v.  People,  124  111.  560;  17  N.  E.  Rep.  13;  High  Ext.  Leg.  Rem., 
sec.  27. 

=*  Ex  parte  Railway  Co.,  101  U.  S.  711 ;  Elliott's  App.  Pro.,  sees.  504- 
506 ;  State  v.  Judge,  12  Sou.  Rep.  941. 

*  Ante,  sec.  27. 

5  Elliott's  App.  Pro.,  sees.  514,  516;  People  r.  Swift,  59  Mich.  529; 
Prosecuting  Attorney  r.  Judge,  26  N.  W.  Rep.  694;  State  v.  Judge,  12 
Sou.  Rep.  941. 

«  Elliott's  App.  Pro.,  sec.  516. 

'  Chumasero  v.  Potts,  2  Mon.  242,  249. 


PROHIBITION.  G27 

But  if  the  common-law  jurisdiction  given  is  not  orig- 
inal, but  appellate  only,  the  subject  of  original  jurisdiction 
in  mandamus,  except  so  far  as  such  jurisdiction  is  inherent 
in  the  court,  is  under  legislative  control.  And  if  the  gen- 
eral grant  of  jurisdiction  is  to  the  court  as  one  of  appel- 
late and  not  of  original  jurisdiction,  the  power  to  issue 
writs  of  mandamus  must  properly  be  confined  to  the  issu- 
ance of  such  writs  in  matters  pertaining  to  its  appelhite 
jurisdiction,  as  above  stated. 

Jurisdiction  as  against  non-residents  may  be  obtained  by 
publication.^ 

With  respect  to  the  power  of  superior  courts  to  super- 
vise and  control  the  acts  of  inferior  courts,  their  jurisdic- 
tion is  confined  to  such  courts  as  are  within  their  territorial 
jurisdiction.^ 

Proceedings  for  the  writ  are  not  special  cases  and  are 
not  within  the  jurisdiction  of  inferior  courts  having 
power  to  act  in  certain  specified  cases,  not  including  man- 
damus, and  in  "  special  cases."  ^ 

Power  to  issue  alternative  writs  of  mandamus  is  usually 
given  to  judges  at  chambers.*  And  in  some  of  the  states 
they  are  authorized  to  issue  peremptory  writs.*  The 
power  to  issue  the  writ  is  usually  confined  to  courts  of 
superior  jurisdiction.^ 

81.  Prohibition.— The  writ  of  prohibition  was  formerly 
a  common  law  writ.'^  But  it  has,  at  the  present  day,  become 
almost  wholly  statutory,  in  the  sense  that  it  is  defined 
and  the  grounds  for  its  issuance  specifically  provided  for 
by  statute.  This  is  not  true  as  to  all  of  the  states,  how- 
ever.    In  some  of  the  states  tlie  statutes  simply  allow  the 

'  Cross  V.  West  Va.,  etc.,  Ry.  Co.,  35  W.  Va.  174;  12  S.  E.  Rep.  1071, 
^  Shields  v.  State,  86  Ala.  584 ;  6  Sou.  Rep.  271. 

'  Ante,  sec.  68;  People  r.  Kern  County,  45  Cal.  679.  But  see  People  v. 
Day,  15  Cal.  91. 

*  Ante,  sec.  58 ;  State  v.  Board  of  Canvassers,  31  Pac.  Rep.  879. 

*  Linch  V.  State,  30  Neb.  740 ;  47  N.  W.  Rep.  88. 
«  School  Inspectors  v.  People.  20  111.  526. 

'High  Ext.  Leg.  Rem.,  sec.  762;  Connecticut  River  R.  R.  i-.  County 
Commissioners,  127  Mass.  50,  57  ;  34  Am.  Rep.  338. 


628       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

writ,  but  do  not  point  out  the  causes  for  which  it  may 
issue. ^ 

The  object  of  the  writ,  under  these  statutory  provisions, 
as  well  as  at  common  law,  is  to  restrain  subordinate  ju- 
dicial tribunals,  of  every  kind,  from  acting  without  juris- 
diction,^ or,  where  they  have  jurisdiction,  from  exceeding 
such  jurisdiction,^  But  the  writ  may  run  against  tri- 
bunals other  than  courts.  In  some  of  the  statutes  or 
codes  of  the  states  it  is  provided  that  the  writ  may  issue 
to  "a  corporation,  board  or  person"  as  well  as  to  courts. 
And  under,  or  independently  of,  such  statutory  provisions 
the  writ  may  be  proper  and  necessary  to  prevent  judicial 
action  by  quasi  judic'ia},  or  even  purely  ministerial  officers 
who  assume  to  exercise  judicial  functions.*  But  the  power 
of  a  certain  court  may  be,  and  sometimes  is,  conhned  to 
the  issuance  of  the  writ  to  courts  alone.^ 

Notwithstanding  such  statutory  provisions  the  general 
nature  of  the  writ  remains  the  same.^  Its  sole  object  is 
still  to  prevent  action  by  an  inferior  tribunal,  or  corpora- 
tion, body  or  person  claiming  to  be  such,  where  it  has  no 
jurisdiction  to  act.  And  the  act  to  be  prevented  must 
necessarily  be  judicial  in  its  nature  and  not  ministerial, 
whatever  may  be  the  character  of  the  tribunal  assuming 

^  Board  of  Commissioners  v.  Spitler,  13  Ind.  235,  239 ;  County  Court 
V.  Boreman,  34  W.  Va.  362 ;  12  S.  E.  Kep.  490. 

2  High  Ext.  Leg.  Rem.  sec.  762 ;  City  of  Coronado  v.  City  of  San  Di- 
ego, 97  Cal.  440;  32  Pac.  Rep.  518;  Thomson  v.  Tracy,  60  N.  Y.  31,  37  ; 
Spriug  Valley  Water  Works  i'.  San  Francisco,  52  Cal.  Ill,  117;  State  v. 
Houston,  40  La.  Ann.  393;  4  Sou.  Rep.  50. 

3  Appo  V.  People,  20  N.  Y.  531,  540;  Thomson  v.  Tracy,  60  N.  Y.  31, 
37 ;  People  v.  Nichols,  79  N.  Y.  582,  591 ;  McConiha  v.  Guthrie,  21  W. 
Va.  134,  141 ;  Bruner  v.  Superior  Court,  92  Cal.  239,  251 ;  28  Pac.  Rep. 
341 ;  Hayne  v.  Justices  Court,  82  Cal.  284 ;  23  Pac.  Rep.  125. 

*  Fleming  v.  Commissioners,  31  W.  Va.  608;  8  S.  E.  Rep.  267,270; 
State  V.  Young,  29  Minn.  474;  9  N.  W.  Rep.  737,  7.39. 

*  Hunter  v.  Moore,  17  S.  E.  Rep.  797;  State  v.  City  Council  of  Colum- 
bia, 16  S.  Car.  412;  17  S.  Car.  80. 

«  Hobart  v.  Tillson,  66  Cal.  210;  5  Pac.  Rep.  83;  Thomson  v.  Tracy, 
60  N.  Y.  31,  37  ;  McConiha  v.  Guthrie,  21  W.  Va.  134,  141 ;  State  v.  Gary, 
33  Wis.  93  ;  Maurer  v.  Mitchell,  53  Cal.  289 ;  State  v.  Rombauer,  104  Mo. 
619 ;  15  S.  W.  Rep.  850. 


PROHIBITION.  029 

the  right  to  perform  it.'  And  where  jurisdiction  to  issue 
the  writ  is  given  by  the  constitution  it  is  held  to  mean  the 
common  law  writ,  and  that  the  legislature  has  no  power 
to  extend  its  office  so  as  to  authorize  its  use  to  prevent 
ministerial  as  well  as  judicial  acts.^ 

It  is  held  otherwise  under  a  constitution  giving  com- 
mon law  jurisdiction,  and  a  statute  extending  the  writ  tp 
ministerial  acts  has  been  upheld  under  such  a  constitu- 
tional provision.^  The  writ  can  not  issue  against  a  legis- 
tive  body  to  prevent  legislation  with  reference  to  matters 
of  public  interest.*  It  is  a  preventive  writ  and  can  not 
issue  after  the  act  complained  of  has  been  done.^  It  can 
only  operate  to  restrain  an  inferior  court  from  exercising 
its  jurisdiction  in  a  particular  case,  and  can  not  be  used  to 
prevent  the  institution  of  an  action.® 

But  further  action  may  be  arrested  at  any  stage  of  the 
proceedings.  Therefore  the  writ  may  issue,  after  the  ren- 
dition of  judgment,  to  prevent  its  enforcement."  And  if 
the  unauthorized  acts  of  the  court  are  only  partially  com- 
pleted the  writ  will  issue  not  only  to  prevent  what  has 
not  been  done,  but,  in  connection  with  such  relief,  to 
nullify  what  has  already  been  accomplished.^ 

'High  Ext.  Leg.  Rem.,  sec.  769;  Camron  f.  Kenfield,  57  Cal.  550; 
Manrer  v.  Mitchell,  53  Cal.  289 ;  City  of  Coronado  v.  City  of  San  Diego, 
97  Cal.  440;  32  Pac.  Rep.  518;  Thomson  v.  Tracy,  60  N.  Y.  31,  37  ;  Ex 
parte  Braudlacht,  2  Hill  (N.  Y.),593;  38  Am.  Dec,  593;  State  v.  Gary,  33 
Wis.  93;  State  v.  Clarke  Co.  Ct.,  41  Mo.  44;  State  r.  Houston,  40  La. 
Ann.  393;  4  Sou.  Rep.  50;  Fleming  v.  Commissioners,  31  W.  Va.  608; 
8  S.  E.  Rep.  267,  270,  272 ;  In  re  Radl,  57  N.  W.  1105. 

»Maurer  w.  Mitchell,  53  Cal.  289;  Camron  v.  Kenfield,  57  Cal.  550; 
Hobart  v.  Tillson,  66  Cal.  210 ;  5  Pac.  Rep.  83 ;  Farmers'  Union  v. 
Thresher,  62  Cal.  407. 

'  Ducheneau  v.  House.  4  Utah,  369 ;  10  Pac.  Rep.  838. 

*  Spring  Valley  Water  Works  v.  San  Francisco,  52  Cal.  Ill,  117. 

*  State  V.  Superior  Court,  2  Wash.  St.  9 ;  25  Pac.  Rep.  1007  ;  Haldeman 
V.  Davis,  28  W.  Va.  324. 

«  Haldeman  v.  Davis,  28  W.  Va.  324. 

'  Hein  v.  Smith,  13  W.  Va.  358,  370;  Ensign  Mfg.  Co.  v.  McGinnis,  30 
W.  Va.  532  ;  4  S.  E.  Rep.  782;  Bodley  v.  Archibald,  33  W.  Va.  229  ;  10  S. 
E.  Rep.  392. 

"  Havemeyer  v.  Superior  Court,  84  Cal.  327,  390,  394;  24  Pac.  Rep.  121. 


630       COMMOM  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION'. 

To  the  extent  that  it  may  thus  be  used  to  nullify  acts 
partially  completed,  it  is  a  remedial  as  well  as  a  preventive 
writ.  But  it  belongs,  notwithstanding,  to  the  preventive, 
and  not  to  the  remedial  class  of  writs.*  It  can  not  be  used 
to  try  the  title  to  an  office.^ 

The  writ  is  applicable  to  a  case  where  a  lower  court  has 
been  possessed  of  jurisdiction,  but  has  been  deprived 
thereof  by  some  step  taken  in  the  case;  for  example,  by 
an  application  for  removal  to  a  federal  court,^  or  has  lost 
jurisdiction  by  a  failure  to  act  in  time,*  or  by  an  appeal,^ 
or  by  other  means. 

As  the  writ  can  only  issue  to  inferior  courts  or  tribunals, 
the  power  to  issue  it  belongs  to  superior  courts.  And  the 
writ  can  only  issue  from  a  court  of  superior  jurisdiction  to 
the  one  to  whom  it  is  issued.^  But  some  of  the  statutes 
on  the  subject  provide,  specifically,  by  what  courts  the  writ 
may  be  issued. 

The  power  to  issue  the  writ  exists  in  the  supreme  court 
of  the  United  States  when  necessary  for  the  exercise  of 
its  appellate  jurisdiction,  as  in  case  of  other  appellate 
courts.  And,  by  express  statutory  provision,  it  is  given 
power  to  issue  the  writ  to  the  district  courts  when  pro- 
ceeding as  courts  of  admiralt}'  and  maritime  jurisdiction.^ 
But  it  has  no  general  power  to  issue  such  writ.^ 

And  it  has  been  held  that  where  an  appeal  lies  to  the 
supreme  court  of  the  United  States  from  the  circuit  court, 
the  former  has  no  jurisdiction  to  issue  a  writ  of  prohibi- 

1  Havemeyer  v.  Superior  Court,  84  Cal.  327,  394;  24  Pac.  Rep.  121; 
Thomson  v.  Tracy,  60  N.  Y.  31,  38. 

^  State  ('.  McMartin,  42  Minn.  30;  43  N.  W.  Rep.  572;  In  re  Radl,  57 
N.  W.  Rep.  1105. 

'  Sheehy  v.  Holmes,  55  Cal.  485 ;  Hayne  v.  Justices  Court,  82  Cal.  284; 
23  Pac.  Rep.  125. 

*  State  V.  Williams,  48  Ark.  227;  2  S.  W.  Rep.  843;  State  v.  Walls,  113 
Mo.  42;  20  S.  W.  Rep.  883;  Burroughs  v.  Taylor,  17  S.  E.  Rep.  745. 

*  State  V.  Superior  Court,  6  Wash.  St.  112 ;  32  Pac.  Rep.  1072. 
'  High  Ext.  Leg.  Rem.,  sec.  785. 

'  Rev.  Stat.  U.  S.  688 ;  Ex  parte  Easton,  95  U.  S.  68 ;  United  States  r- 
Peters,  3  Dall.  121. 

^  Ex  parte  Easton,  95  U.  S.  68,  72 ;  Ex  parte  City  Bank  of  New  Orleans, 
3  How.  292;  Bryan  v.  United  States,  1  Black,  140. 


f| 


Jll 


PROHIBITION.  631 

tion  to  prevent  action  in  a  cause  by  the  latter  until  an  ap- 
peal is  actually  taken.^ 

The  circuit  and  district  courts  of  the  United  States  have 
jurisdiction  to  issue  the  writ  when  necessary  for  the  exer- 
cise of  their  respective  jurisdictions,  but  not  otherwise.^ 

The  writ  is  an  extraordinary  one  in  the  sense  that  it  can 
only  issue  where  there  is  no  other  plain,  speedy  and  ade- 
quate remedy  in  the  ordinary  course  of  law.^ 

It  is  not  sufHcient  to  deprive  a  party  of  the  writ  that  he 
may  resort  to  another  remedy.  It  must  be  a  speedy  and 
an  adequate  remedy.^ 

It  is  usually  denominated  a  prerogative  writ;^  but  is,  in 
fact,  and  is  treated  in  practice  at  the  present  time,  very 
generally  as  a  writ  of  right  which  a  court  has  no  legal  right 
to  refuse  upon  a  proper  showing,  although  it  is  generally 
held  to  rest  in  the  sound  legal  discretion  of  the  court 
whether  it  shall  issue  or  not;^  which  means  nothing  less 
than  that  it  is  a  writ  of  right,  plain  and  simple,  and  that 
if  a  court  refuses  to  issue  it  upon  a  proper  showing,  such 
refusal  is  error  for  which  the  applicant  is  entitled  to  a  re- 
versal, on  appeal  to  a  higher  court,  where  the  remedy  by 
appeal  is  open  to  him. 

But  in  some  of  the  states  it  is  expressly  held  that  the 
writ  is  not  demandable  as  matter  of  right,  but  of  sound 
legal  discretion,  and  that  therefore  the  action  of  the  court 
denying  the  writ  is  not  reviewable  on  appeal.^  The  better 
rule,  however,  is  the  other  way.^ 

The  writ  is  purely  jurisdictional  and  will  not  lie  to  cor- 

'  ^  Ex  parte  Warmouth,  17  Wall.  64. 

'  Rev.  Stat.  U.  S.,  sec.  716;  High  Ext.  Leg.  Rem.,  sec.  786. 

'  State  V.  Braun,  31  "Wis.  600 ;  State  v.  Superior  Court,  2  Wash.  St.  9 ; 
25  Pac.  Rep.  1007;  McConiha  v.  Guthrie,  21  W.  Va.  134,  141 ;  Murphy  v. 
Superior  Court,  84  Cal.  592  ;  24  Pac.  Rep.  310 ;  Willman  v.  District  Court. 
35  Pac.  Rep.  692. 

*  Havemeyer  v.  Superior  Court,  84  Cal.  327,  397 ;  24  Pac.  Rep.  121. 

^  High  Ext.  Legal  Rem.,  sec.  765. 

«  Havemeyer  v.  Superior  Court,  84  Cal.  327,  401,  403  ;  24  Pac.  Rep.  121; 
Smith  V.  Whitney,  116  U.  S.  167;  6  Sup.  Ct.  Rep.  570;  County  Court  v. 
Boreman,  12  S.  E.  Rep.  490 ;  34  W.  Va.  362. 

^  People  V.  Westbrook,  89  N.  Y.  152. 

«  Smith  V.  Whitney,  116  U.  S.  167;  6  Sup.  Ct.  R°p.  570. 


632     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

rect  errors  or  be  allowed  to  usurp  the  functions  of  a  writ 
of  error  or  certiorari,  or  of  the  remedy  by  appeal.^  And 
where  the  party  has  his  remedy  by  writ  of  error,  appeal, 
or  certiorari,  and  the  circumstances  are  such  that  either 
of  said  remedies  will  be  efficient  and  adequate,  the  writ 
will  be  denied.^ 

But  the  mere  fact  that  such  other  remedies,  or  either  of 
them,  are  available,  is  not,  necessarily,  a  bar  to  the  remedy 
of  prohibition.  Whether  the  writ  shall  issue,  notwith- 
standing the  existence  of  such  other  remedies,  is  within 
the  discretion  of  the  court,^  although  it  is  held  otherwise 
in  some  of  the  cases.* 

A  distinction  is  made,  in  this  respect,  in  some  of  the 
cases,  between  an  entire  want  of  jurisdiction  of  the  gen- 
eral subject-matter  and  a  mere  excess  of  jurisdiction;^  but 
the  distinction  does  not  seem  to  rest  upon  any  solid  founda- 
tion in  reason.  The  remedy  by  appeal  or  certiorari  would 
seem  to  be  as  speedy  and  adequate  in  one  case  as  in  the 
other.  It  is  held  that  this  limitation  upon  the  right  to  the 
writ  does  not  apply  to  an  application  t5  prevent  the  exer- 
cise of  jurisdiction  in  extraordinary  proceedings.^ 

If  it  appears  that  because  of  delay  in  the  enforcement 
of  such  other  remedies,  or  for  any  other  reason,  they  will 
not  be  efficient  and  adequate,  the  w^rit  should  issue.^  The 
mere  fact,  however,  that  a  resort  to  other  remedies  will 

'  High  Ext.  Leg.  Eem.,  sec.  772 ;  City  of  Coronado  r.  City  of  San  Diego, 
97  Cal.  440;  32  Pac.  Rep.  518;  Coker  v.  Superior  Court,  58  Cal.  177  ;  Day 
V.  Superior  Court,  61  Cal.  489 ;  Bishop  v.  Superior  Court,  87  Cal.  226 ;  25 
Pac.  Rep.  435;  People  v.  Nichols,  79  N.  Y.  582,  591  ;  Turner  v.  Mayor,  78 
Ga.  683 ;  3  S.  E.  Rep.  649. 

^  Coker  v.  Superior  Court,  58  Cal.  177;  Agassiz  r.  Superior  Court,  90 
Cal.  101 ;  27  Pac.  Rep.  49 ;  Turner  v.  Mayor,  78  Ga.  683 ;  3  S.  E.  Rep.  649 ; 
Willman  v.  District  Court,  35  Pac.  Rep.  692. 

*  Yearian  v.  Speirs,  4  Utah,  385 ;  10  Pac.  Rep.  609,  616 :  State  v.  Wilcox, 
24  Minn.  143,  147. 

*  People  V.  Hills,  5  Utah,  410;  16  Pac.  Rep.  405. 

s  Yearian  v.  Speirs,  4  Utali,  385;  10  Pac.  Rep.  609,  616. 

«  State  V.  AVilcox,  24  Minn.  143,  147. 

'  Havemeyer  v.  Superior  Court,  84  Cal.  327,  397 ;  24  Pac.  Rep.  121  ; 
Ducheneau  v.  House,  4  Utah,  369;  10  Pac.  Rep.  838;  Hayne  v.  Justices 
Court,  82  Cal.  284 ;  23  Pac.  Rep.  125. 


\ 


I 


PROHIBITION.  633 

cause  longer  delay  than  by  enforcing  a  writ  of  prohibition, 
or  will  cause  the  party  greater  inconvenience,  will  not  au- 
thorize the  issuance  of  the  writ  unless  it  also  appears  that 
such  delay  will  cause  injury  to  the  applicant  or  in  some 
way  render  the  remedy,  in  the  particular  case,  inefficient 
and  inadequate.^ 

It  is  generally  held  that  the  writ  will  not  issue  where 
the  applicant  therefor  has  his  remedy  by  certiorari?  But, 
in  some  of  the  cases,  decided  under  statutes  authorizing 
the  issuance  of  the  writ  where  there  is  no  plain,  speedy 
and  adequate  remedy  in  the  ordinary  course  of  law,  it  is 
held  that  the  right  to  resort  to  certiorari  as  a  remedy  will 
not  bar  the  right  to  prohibition  because  the  proceeding  by 
certiorari  is  not  in  the  ordinary  course  of  law,  although  it 
may  be  speedy  and  adequate.^ 

And  the  rule  thus  laid  down  is  to  be  commended.  There 
is  no  good  reason  why  a  party  should  be  denied  one  rem- 
edy because  he  has  another  remedy  equally  summary  in 
its  nature,  and  equally  beyond  and  outside  of  the  ordinary 
course  of  law.  Sudh  arbitrary  rules  by  which  parties  are 
denied  relief  or  delayed  in  their  effi^rts  to  obtain  it,  have 
nothing  to  commend  them. 

It  is  generally  held  that  the  writ  can  not  issue  until  the 
question  of  jurisdiction  in  the  inferior  court  has  been  pre- 
sented to  that  court,  by  a  plea  to  the  jurisdiction,  or  in  some 
other  appropriate  way,  and  decided  against  the  applicant  or 
a  decision  refused.*  But  the  failure  to  raise  the  question  in 
such  inferior  court  is  not  an  absolute  bar  to  the  right  to  pro- 
hibition and  the  superior  court  may,  in  its  discretion,  grant 

'  Agassiz  V.  Superior  Court,  90  Cal.  101;  27  Pac.  Eep.  49;  Strouse  r. 
Police  Court,  85  Cal.  49 ;  24  Pac.  Rep.  747 ;  Willman  v.  District  Court,  35 
Pac.  Rep.  692. 

=  Turner  v.  Mayor,  78  Ga.  683 ;  3  S.  E.  Rep.  649 ;  County  Court  v. 
Boreman,  34  W.  Va.  362 ;  12  S.  E.  Rep.  490;  State  v.  Bowerman,  40  Mo. 
App.  576. 

="  Ducheneau  v.  House,  4  Utah,  369  ;  10  Pac.  Rep.  838. 

*  State  V.  Superior  Court,  2  Wash.  St.  9;  25  Pac.  Rep.  1007  ;  State  v. 
Williams,  48  Ark.  227  ;  2  S.  W.  Rep.  843 ;  Walcott  v.  Wells,  21  Nev.  47; 
24  Pac.  Rep.  367  ;  Baughman  v.  Superior  Court,  72  Cal.  572  ;  14  Pac.  Rep. 
207;  State  v.  Henry,  41  La.  Ann.  908 ;  6  Sou.  Rep.  807. 


634      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

the  writ,  where  objection  to  its  jurisditioii  has  not  been  pre- 
sented to  the  lower  court.'  And  in  some  of  the  cases  the 
requirement  that  the  want  of  jurisdiction  must  be  pleaded 
in  the  court  below,  is  held  to  apply  only  where  the  want 
of  jurisdiction  does  not  appear  on  the  face  of  the  record, 
and  that  when  it  does  so  appear,  it  is  unnecessary  which 
was  the  common  law  rule  on  the  subject.^ 

Prohibition  will  lie  to  prevent  action  where  the  court 
has  not  jurisdiction  of  the  person  as  well  as  in  cases  where 
there  is  an  absence  of  jurisdiction  of  the  subject-matter. 
But  where  the  court  has  jurisdiction  of  the  subject-mat- 
ter and  the  question  of  its  jurisdiction  of  the  person,  or  of 
the  particular  case,  or  of  some  branch  of  or  proceeding  in 
the  case,  turns  upon  some  fact  to  be  determined  by  the 
court,  its  decision  that  it  has  jurisdiction,  if  wrong,  is  an 
error,  for  which  an  appeal  or  other  similar  remedy  is  ap- 
propriate, and  prohibition  is  not  the  proper  remedy.^ 

It  is  frequently  very  difficult  to  distinguish,  in  this  class 
of  cases,  between  error  in  determining  the  question  of  ju- 
risdiction which  can  not  be  reached  by  prohibition,  and  a 
want  or  excess  of  jurisdiction  which  will  authorize  the  in- 
forcement  of  the  writ,  and  no  definite  rule  on  the  subject 
can  be  laid  down.  But  it  is  quite  clear  that  where  the 
power  to  act  with  respect  to  the  particular  cause  or  mat- 
ter in  controvery  is  entirely  wanting,  and  no  discretion 
rests  in  the  inferior  tribunal  with  reference  to  the  question 
whether  it  shall  act  or  not,  the  writ  is  the  proper  remedy. 

On  the  other  hand,  if  the  question  is  one  of  discretion 
in  the  lower  court,  or  the  question  whether  it  has  power 

1  Havemeyer  v.  Superior  Court,  84  Cal.  327,  403 ;  24  Pac.  Rep.  121 ; 
Swinburn  v.  Smith,  15  W.  Va.  483,  498;  State  v.  Wilcox,  24  Minn.  143. 

^  Swinburn  v.  Smith,  15  W.  Va.  383,  498;  Arnold  v.  Shields,  5  Dana 
(Ky.)  18;  30  Am.  Dec.  669. 

3  Mines  D'Or,  etc.,  Soc.  v.  Superior  Court,  91  Cal.  101 ;  27  Pac.  Rep. 
532;  Agassiz  v.  Superior  Court,  90  Cal.  101 ;  27  Pac.  Rep.  49  ;  McConiha 
V.  Guthrie,  21  W.  Ya.  134,  141;  Bruner  v.  Superior  Court,  92  Cal.  239, 
251 ;  28  Pac.  Rep.  341 ;  Walcott  v.  Wells,  21  Nev.'47  ;  24  Pac.  Rep.  367  ; 
Mastin  v.  Sloan,  98  Mo.  252;  11  S.  W.  Rep.  5,58;  State  v.  Valliant,  100 
Mo.  59;  13  S.  W.  Rep.  398;  State  v.  Kansas  City  Court  of  Appeal,  104 
Mo.  419;  16S.  W.  Rep.  415. 


PROHIBITION.  tjoo 

to  proceed  or  not  depends  upon  some  fact  to  be  determined 
by  it,  and  the  determination  of  that  question  in  one  way 
or  the  other  will  vest  it  with  jurisdiction,  and  it  has  de- 
cided the  question  of  fact  in  that  way,  the  writ  will  not 
lie.  In  such  case  the  court  has  power  to  determine  for  it- 
self whether  it  has  jurisdiction  or  not,  and  if  it  decides  that 
it  has,  its  decision  is  an  error  which  can  only  be  reviewed 
on  appeal  or  some  appropriate  means  for  the  correction  of 
errors.^ 

It  is  said  that  the  question  whether  the  court  has  juris- 
diction of  the  particular  case  or  not  will  not  be  inquired 
into  where  it  appears  that  it  had  jurisdiction  of  the  gen- 

^ '"Prohibition  lies  in  all  cases  where  there  have  been  proceedings 
'without  or  in  excess'  of  jurisdiction,  and  there  '  is  not  a  plain,  speedy, 
and  adequate  remedy  in  the  ordinary  course  of  law.'  (Code  Civ.  Proc, 
sees.  1102,  1103.)  If  the  views  herein  before  expressed  are  correct,  it  is 
clear  that  the  appointment  of  the  so-called  elisor  was  '  without  jurisdic- 
tion.' Jurisdiction  is  usually  defined  as  '  the  power  to  hear  and  deter- 
mine ;'  but,  of  course,  it  is  difficult  to  express  in  abstract  terms  a  state- 
ment of  the  distinction  between  error  in  exercising  jurisdiction  and 
jurisdiction  itself,  that  can  be  readily  applied  to  all  cases  as  they  may 
arise.  The  law  endeavors  to  fix  definitely  every  thing  that  can  in  its 
nature  be  so  fixed,  so  as  to  leave  as  little  as  possible  to  the  judgment  or 
caprice  of  those  who  administer  it.  But  as  many  future  events  can  not, 
in  the  nature  of  things,  be  foreseen  and  provided  for,  it  follows  neces- 
sarily that  much  mnst  be  left  to  the  discretion  of  courts  and  other  tri- 
bunals. And  the  main  test  of  jurisdiction  in  any  particular  matter  is, 
whether  or  not  discretion  is  given  the  court  as  to  such  matter.  In  the 
matter  before  us,  for  instance,  if  the  law  intended  to  give  the  power  to 
appoint  an  elisor  in  the  event  of  disqualification  of  the  sheriflf,  it  is  ap- 
parent that  the  law  could  not  determine  beforehand  the  disqualification 
of  any  particular  person  who  might  happen  to  be  sheriff  at  any  future 
time.  It  could  not  say  that  any  such  sheriff  would  be  actuated  by 
'bias  or  prejudice.'  Consequently,  the  determination  of  the  issue, 
when  properly  made,  of  such  disqualification,  is  necessarily  left  to  the 
discretion  of  the  court,  and  it  has  jurisdiction  to  hear  and  determine 
that  issue.  But  when  there  is  no  such  disqualification,  then  there  is  no 
discretion  given  to  determine  whether  an  elisor  should  or  should  not  be 
appointed.  Consequently,  when  there  is  such  an  issue  made,  and  the 
court  finds  against  the  disqualification,  or  when,  as  in  the  case  at  bar,  it 
is  admitted  that  there  was  no  such  disqualification,  then  no  jurisdiction 
exists  to  make  the  'appointment.'"  Bruner  v.  Superior  Court,  92  Cal. 
239,  251  ;  28  Pac.  Rep.  341. 


636        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

eral  subject-matter.^  But  this  is  putting  the  doctrine 
rather  too  strongly.  Such  a  rule  would  prevent  the  ap- 
plication of  the  writ  in  any  case  where  the  question  is 
as  to  jurisdiction  of  the  person  only.  But  where  the 
question  of  jurisdiction  turns  upon  the  sufficiency  or  in- 
sufficiency of  the  service  of  process,  and  the  court  below 
has  held  it  to  be  sufficient,  the  fact  that  a  superior  court 
may  be  of  a  different  opinion  will  not  authorize  the  issu- 
ance of  the  writ.  A  different  rule  must  prevail,  however, 
where  there  is  an  entire  want  of  service,  or  where  such 
service  could  in  no  case  give  the  court  jurisdiction. 

Where  the  right  to  a  change  of  venue  is  given  by  stat- 
ute, if  the  action  is  brought  in  the  wrong  county,  such 
remedy  is  a  speedy  and  adequate  one  and  must  be  resorted 
to.^  A  different  rule  prevails  in  some  of  the  states.^  And 
if  an  application  for  a  change  should  be  made  and  denied 
in  a  case  where  such  application  would  have  the  effect  to 
oust  the  court  of  jurisdiction,  prohibition  would  be  the 
proper  remedy.* 

But  it  has  been  held  that,  where  there  is  an  entire  ab- 
ience  of  jurisdiction  over  the  person,  growing  out  of  the 
fact  that  he  is  sued  in  a  personal  action  out  of  the  district 
of  his  residence,  the  writ  will  not  lie,  the  reason  given  be- 
ing that  the  court  has  jurisdiction  of  the  cause,  and  he 
has  his  remedy  by  appeal  or  certiorari.^ 

It  is  otherwise  where  the  action  is  local  and  the  subject- 
matter  of  the  suit  is  not  within  the  territorial  jurisdiction 
of  the  court.^  And  where  a  party  is  brought  into  the  ju- 
risdiction as  a  witness  and  service  is  made  upon  him  away 

1  Ex  parte  Ellyson,  20  Gratt.  24;  McConiha  r.  Guthrie,  21  W.  Va.  134, 
141. 

«  Fresno  Nat'l  Bank  v.  Superior  Court,  83  Cal.  491 ;  24  Pac.  Rep.  157. 

'  City  of  North  Yakima  v.  Superior  Court,  4  Wash.  St.  655  ;  30  Pac 
Rep.  1053  ;  State  v.  Superior  Court,  5  Wash.  St.  639  ;  32  Pac.  Rep.  553. 

*  Ante,  sees.  24,  45,  47,  51 ;  State  v.  Superior  Court,  6  Wash.  St.  518  ;  32 
Pac.  Rep.  457. 

*  People  V.  Hills,  5  Utah,  410;  16  Pac.  Rep.  405;  State  v.  Hocker,  U 
Sou.  Rep.  586. 

«  Grangers  Bank  v.  Superior  Court,  33  Pac.  Rep.  1095 ;  City  ot  Norrh 
Yakima  v.  Superior  Court,  4  Wash.  St.  655;  30  Pac.  Rep.  TOoo. 


PROHIBITION.  037 

from  his  place  of  residence,  proceedings  under  the  service 
may  be  prevented  by  prohibition.^  The  question  turns 
upon  the  efiect  of  bringing  an  action  in  the  wrong. county 
or  state,  which  has  been  considered  in  other  sections  of 
this  work.- 

In  those  cases,  or  in  those  states  where  it  is  held  that 
the  right  to  be  sued  in  a  particular  place  is  a  mere  privi;^ 
lege  that  may  be  waived,  and  that  the  commencement  of 
the  action  in  the  wrong  place  must  be  taken  advantage  of 
by  objection  made  in  the  court  in  which  the  action  is 
pending,  the  writ  will  not  lie.^  But  in  those  cases  or  in 
those  states  where  the  want  of  jurisdiction  is  absolute, 
where  the  action  is  brought  in  the  wrong  place,  and  no 
objection  need  be  made  to  the  court  in  which  the  action  is 
commenced  in  order  to  secure  a  transfer  of  the  action  or 
to  divest  the  court  of  jurisdiction,  prohibition  is  the  proper 
remedy.* 

The  power  to  issue  writs  of  prohibition  by  appellate 
courts  is  confined,  in  some  of  the  states,  to  cases  in  which 
appeals  may  be  taken  to  such  courts,  and  in  matters  aflect- 
ing  their  appellate  jurisdiction  ;  while  in  others  the 
power  is  not  so  limited,  but  such  courts  are  given  full 
original  jurisdiction  to  issue  the  writ  to  all  inferior  courts 
in  all  cases.' 

It  is  held  in  some  of  the  states  that  no  appeal  will  lie 
from  a  judgment  or  order  refusing  a  writ  of  prohibition.^ 

This  is  placed  upon  the  ground  that  the  writ  is  not  a 
writ  of  right  but  issues  only  at  the  discretion  of  the  court, 
and  the  action  of  the  court  in  a  matter  of  discretion  is  not 
reviewable.  But,  as  has  been  shown  above,  the  great 
weight  of  authority,  at  least  of  modern  authority,  is  to 

'  People  V.  Flansburg,  26  N.  Y.  Supl.  329;  ante,  sec.  37. 

'  Ante,  6ecs.  45,  46,  47,  49,  51.  '  State  v.  Hocker,  14  Sou.  Rep.  586. 

*  Grangers  Bank  r.  Superior  Court,  33  Pac.  Rep.  1095;  Fritts  v.  Camp, 
94  Cal.  393 ;  29  Pac.  Rep.  867. 

^  State  V.  McCrea,  40  La.  Ann.  20:  3  Sou.  Rep.  ."^80;  Connecticut  River 
R.  R.  V.  County  Commissioner.s,  127  Mass.  50,  57;  Commonwealth  v. 
Latham,  85  Va.  632  ;  8  S.  E.  Rep.  488  ;  State  v.  Henry,  41  La.  Ann.  908; 
6  Sou.  Rep.  807. 

^  State  V.  Bowerman,  40  Mo.  App.  576. 


638     COMMON  LAW,  EQUITY,  AND  STATUTuRY  JUKISDICTIOX. 

the  effect  that  it  is  a  writ  of  right  and  does  not  rest  wholly 
wnthin  the  discretion  of  the  court.  It  follows  that  the  ac- 
tion of  a  court  refusing  the  writ  may  be  reviewed  on  ap- 
peal, and  so  it  is  generally  held.^ 

The  question  whether  an  order  to  show  cause  why  a 
writ  of  prohibition  shall  not  issue  may  be  made  by  a  judge 
at  chambers  or  in  vacation,  in  the  absence  of  some  statute 
authorizing  it,  is  open  to  serious  question,  although  the 
right  has  been  upheld  in  some  of  the  cases.^ 

And  whatever  may  be  the  correct  rule  as  to  an  order  to 
show  cause  the  writ  can  only  issue  by  a  court. 

Prohibition  is  the  proper  remedy  to  prevent  action  by  a 
judge  who  is  disqualified  by  interest,  or  otherwise.' 

82.  Habeas  corpus. — It  is  not  the  purpose  of  this  section 
to  enter  into  a  history  of  the  writ  of  habeas  corpus  or  of  the 
causes  for  its  issuance  further  than  may  be  found  to  be 
necessary  in  an  effort  to  ascertain  the  extent  of  and  limita- 
tions upon  the  jurisdiction  of  the  courts  in  issuing  the  writ, 
the  extent  to  which  they  may  go  in  the  investigation  of  the 

^  "  It  is  often  said  that  the  granting  or  refusing  of  a  writ  of  prohibi- 
tion'is  discretionary,  and,  therefore,  not  the  subject  of  a  writ  of  error. 
That  may  be  true  where  there  is  another  legal  remedy  by  appeal  or 
otherwise,  or  where  the  question  of  the  jurisdiction  of  the  court  whose 
action  is  sought  to  be  prohibited  is  doubtful,  or  depends  on  facts  which 
are  not  made  matter  of  record,  or  where  a  stranger,  as  he  may  in  Eng- 
land, applies  for  the  writ  of  prohibition.  But  where  that  court  has 
clearly  no  jurisdiction  of  the  suit  or  prosecution  instituted  before  it, 
and  the  defendant  therein  has  objected  to  its  jurisdiction  at  the  outset, 
and  has  no  other  remedy,  he  is  entitled  to  a  writ  of  prohibition  as  mat- 
ter of  right ;  and  a  refusal  to  grant  it,  where  all  the  proceedings  appear 
of  record,  may  be  reviewed  on  error.  This  is  the  clear  result  of  the 
modern  English  decisions,  in  which  the  law  concerning  writs  of  prohi- 
bition has  been  more  fully  discussed  and  explained  than  in  the  older 
authorities.  In  re  Forster,  4  Best  &  S.  187,  199;  Mayor,  etc.,  of  London 
V.  Cox,  L.  R.  2  H.  L.  239,  280;  Worthington  v.  Jeflfries,  L.  R.  10  C.  P. 
379,  380 ;  Chambers  v.  Green,  L.  R.  20  Eq.  552,  555.  See,  also,  Weston 
V.  City  Council  of  Charleston,  2  Pet.  449,  reversing  on  error  s.  c.  Harp. 
340."    Smith  v.  Whitney,  116  U.  S.  167  ;  6  Sup.  Ct.  Rep.  570,  573. 

''  State  V.  Rombauer,  104  Mo.  619;  15  S.  W.  Rep.  850;  16  S.  W.  Rep. 
502. 

'  Ante,  sec.  62;  North  Bloomfield  Mining  Co.  v.  Keyser,  58  Cal.  315; 
Heilbron  r.  Campbell,  23  Pac.  Rep.  122. 


HABEAS    CORPUS.  639 

jurisdiction  and  acts  of  other  courts,  and  tlie  extent  and 
character  of  the  relief  that  maybe  afforded  under  the  writ. 
For  this  purpose  it  is  sufficient  to  say  that  it  is  a  writ  the 
object  of  which  is  to  liberate  those  who  are  unlawfully  im- 
prisoned,' whether  by  the  action  or  under  the  order  or 
judgment  of  a  court,  or  without  the  forms  of  law. 

The  right  to  the  writ  exists  independently  of  and  can 
not  be  taken  away  by  statute.^  The  right  is  guaranteed 
by  the  constitution  of  the  United  States  and  of  the  states,' 
and  the  power  to  issue  it  is  given,  very  generally,  to  all 
of  the  superior  courts,  state  and  national,  and  the  judges 
thereof,from  the  courts  of  final  appellate  jurisdiction  down.* 
But  the  power  is  sometimes  given  to  the  court  alone  and 
not  to  the  judges.*  And,  generally,  the  power  given  to  the 
appellate  courts  is  vested  in  them  as  original  and  not  as 
appellate  jurisdiction  alone. 

Generally,  an  appeal  is  also  given  from  the  subordinate 
to  the  higher  courts  in  the  exercise  of  the  jurisdiction  to 
issue  the  writ,^  but  not  always.^  And  where  no  appeal  is 
allowed  by  statute  certiorari  may  be  resorted  to.* 

In  some  of  the  states  the  doctrine  that  there  can  be  no 
appeal  in  this  class  of  cases  is  placed  upon  the  ground  that 
the  jurisdiction  of  all  of  the  courts  and  judges  to  issue  the 
writ  is  original  and  concurrent,  and  none  can  review  the 
action  of  another.^ 

The  causes  for  which  the  writ  may  issue  are  not,  gener- 
ally, provided  by  statute,  except  where  the  office  of  the 

'  Ex  parte  Watkins,  3  Pet.  193,  202. 

'  People  V.  Liscomb,  60  N.  Y.  5-59 ;  19  Am.  Rep.  211. 

^  Hurd  Habeas  Corpus,  105. 

*  Ex  parte  Yerger,  8  Wall.  85;  Ex  parte  Bollman,  4  Cranch,  75;  Peo- 
ple V.  Liscomb,  60  N.  Y.  559 ;  19  Am.  Rep.  211  ;  Ex  parte  Burrus,  136  U. 
S.  586;  10  Sup.  Ct.  Rep.  850 ;  Patterson  r.  State,  50  N.  J.  L.  421  ;  14  Atl. 
Rep.  125. 

*  In  re  White,  33  Neb.  812 ;  51  N.  W.  Rep.  287. 

^  Speer  r.  Davis,  38  Ind.  271  ;  Ex  parte  Trader,  24  Tex.  App.  393 ;  6  S. 
W.  Rep.  .533. 

'  Ex  parte  Jilz,  64  Mo.  205 ;  27  Am.  Rep.  218;  Ferguson  v.  Ferguson, 
5  Mo.  197  ;  In  re  Strickland,  41  La.  Ann.  324 ;  6  Sou.  Rep.  577. 

8  State  V.  Herndon,  107  X.  Car.  934 ;  12  S.  E.  Rep.  268. 

^  In  re  Strickland,  41  La.  Ann.  324  ;  6  Sou.  Rep.  577. 


640      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

writ  is  intended  to  be  extended  or  enlarged.^  Therefore, 
the  general  principles  upon  which  it  was  issued  in  England 
before  our  constitutions  and  statutes  were  enacted  will  con- 
trol the  courts  in  the  exercise  of  their  jurisdiction,  subject 
to  the  limitations,  if  any,  imposed  by  our  laws." 

The  causes  for  which  the  writ  may  issue  have  been  in- 
creased, and  the  extent  to  which  the  courts  may  go  in  in- 
vestigating such  causes  have  been  extended  and  enlarged 
quite  materially  in  some  of  the  states.^  But  in  none  has 
the  writ  been  made  less  effective  or  the  causes  for  which  it 
may  issue  been  diminished.* 

The  general  rule  is  that  the  writ  is  jurisdictional,  when 
directed  to  a  court  or  judicial  officer,  and  can  only  be  used 
to  inquire  into  the  jurisdiction  of  such  court  or  officer,^ 
and  that  it  can  not  be  used  as  a  writ  of  error  or  appeal  for 
the  purpose  of  inquiring  into  mere  errors  or  irregularities;^ 
nor  can  the  court  determine,  under  the  writ,  whether  the 
acts  alleged  constituted  the  offense  charged  or  not,^  or  the 
sufficiency  or  insufficiency  of  the  evidence  to  warrant  the 
imprisonment  of  the  party  seeking  the  writ.^ 

But  the  inquiry  is  not  confined  to  the  question  whether 
the  court  had  jurisdiction  of  the  cause  and  of  the  defend- 

1  Ex  parte  Watkins,  3  Pet.  193,  201 ;  Cooley  Const.  Lira.  *p.  347. 
^  Ex  parte  Parks,  93  IT.  S.  18 ;  Cooley  Const.  Lim.  »p.  347. 
3  People  V.  Liscomb,  60  N.  Y.  559 ;  19  Am.  Rep.  211 ;  Ex  parte  Max- 
well, 11  Nev.  428. 

*  Cooley  Const.  Lim.  "•■■p.  347. 

*  Ex  parte  Watkins,  3  Pet.  193 ;  Ex  parte  Parks,  93  U.  S.  18  ;  In  re 
Eldred,  46  Wis.  530 ;  1  N.  W.  Rep.  175 ;  Ex  parte  Siebold,  100  U.  S.  371  ; 
In  re  Terry,  128  U.  S.  289 ;  9  Sup.  Ct.  Rep.  77  ;  Wright  v.  Wright,  74  Wis. 
439;  43  N.  W.  Rep.  145;  Commonwealth  v.  Lecky,  1  Watts,  66;  26  Am. 
Dec.  37,  41,  42 ;  Cooley  Const.  Lim.  *pp.  347,  348. 

6  Ex  parte  Watkins,  3  Pet.  193;  Ex  parte  Parks,  93  U.  S.  18;  Ex  parte 
Siebold,  100  U.  S.  371 ;  Ex  parte  Fisher,  6  Neb.  309 ;  Phillips  v.  Welch, 
12  Nev.  158;  Ex  parte  Winston,  9  Nev.  71;  Ex  parte  Maxwell,  11  Nev. 
428;  Turney  v.  Barr,  75  la.  758;  38  N.  W.  Rep.  550;  Commonwealth  v. 
Lecky,  1  Watts.  66;  26  Am.  Dec.  37,  40,  41;  Cooley  Const.  Lim.  *pp. 
347,  348. 

•'  Horner  v.  United  States,  143  U.  S.  570 ;  12  Sup.  Ct.  Rep.  522. 

«  Horner  v.  United  States,  143  U.  S.  570;  12  Sup.  Ct.  Rep.  407  ;  Orteiza 
v.  Jacobus,  136  U.  S.  330;  10  Sup.  Ct.  Rep.  1031 ;  Ex  parte  Marx,  86  W. 
Va.  40  ;  9  S.  E.  Rep.  475  ;  In  re  Haskell,  52  Fed.  Rep.  795. 


HABEAS    CORPUS.  641 

ant,  but  may  be  extended  to  the  question  whether  the 
court  had  power  to  render  a  particular  judgment  or  impose 
the  particular  penalty  inflicted.^ 

A  difierent  rule  is  laid  down  under  some  of  the  statutes, 
it  being  held  that  the  court  has  no  power  to  go  behind  the 
judgment  of  a  court  of  general  jurisdiction  to  inquire 
whether  the  judgment  is  valid  or  not.^  But  the  construc- 
tion thus  placed  upon  the  statute,  which  is  similar  to  stat- 
utes on  the  same  subject  in  other  states,  restricts  the  pow- 
ers of  the  courts,  under  the  writ,  beyond  all  reason.  The 
inhibition  against  an  inquiry  into  the  legality  of  a  tinal 
judgment  of  a  "court  of  competent  jurisdiction"  can  not 
reasonably  be  construed  to  prevent  all  inquiry  into  the 
question  whether  the  court  rendering  the  judgment,  al- 
though one  of  general  jurisdiction,  was  competent  to  ren- 
der the  judgment  brought  in  question.  And  it  is  not 
sufficient  to  bar  the  right  that  the  court  had  jurisdiction 
of  the  general  subject-matter.  It  must  have  jurisdiction 
to  render  judgment  in  the  particular  case.^  So  if  the 
court  is  one  of  special  jurisdiction  the  question  whether  it 
has  kept  within  the  powers  conferred  upon  it  may  be  in- 
quired into  by  habeas  corpus}  But  whether  the  imposition 
of  a  sentence  in  excess  of  what  the  law  permits  is  ground 
for  the  writ  is  a  question  about  which  there  is  a  great 
diversity  of  opinion  in  the  decided  cases.  In  some  it  is 
held  that  the  imposition  of  such  a  sentence  is  not  merely 
an  error  of  law  but  is  an  excess  of  jurisdiction  from  which 
the  party  is  entitled  to  be  relieved  by  habeas  corpus.^ 

In  others  the  direct  contrary  is  held  on  the  ground  that 
as  the  court  has  jurisdiction  of  the  offisnse  and  of  the  per- 
son of  the  defendant  the  imposition  of  a  wrong  sentence 

^  People  V.  Liscorab,  60  N.  Y.  559;  19  Am.  Rep.  211 ;  In  re  Pierce,  44 
Wis.  411;  In  re  Smith,  33  Pac.  Rep.  957;  In  re  Bonner,  14  Sup.  Ct. 
Rep.  323. 

^  In  re  Lybarger,  2  Wash.  St.  131 ;  25  Pac.  Rep.  1075. 

^  State  V.  Kinmore,  55  N.  W.  Rep.  830. 

*  In  re  O'Sullivan,  31  Fed.  Rep.  447. 

*  Ex  parte  Snow,  120  U.  S.  274;  7  Sup.  Ct.  Rep.  556;  Ex  parte  Brown, 
97  Cal.  83;  31  Pac.  Rep.  840;  In  re  Blair,  4  Wis.  522 ;  Ex  parte  Page,  49 
Mo.  291 ;  Ex  parte  Bernert,  62  Cal.  524. 

41 


642       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

is  no  more  than  an  error  committed  by  a  court  liaving 
jurisdiction,  and  therefore  can  not  be  reviewed  under  the 
writ;^  while  in  others  it  is  held  that  the  court,  having 
jurisdiction  of  the  offense  and  of  the  person  of  the  defend- 
ant, its  sentence  is  valid,  so  far  as  it  is  within  the  law,  and 
wholly  void  so  far  as  it  is  in  excess  of  it;  and  that  the  de- 
fendant may,  by  habeas  corpus^  be  relieved  from  such  excess, 
but  is  bound  by  so  much  of  the  sentence  as  is  within  the 
law  where  the  two  can  be  separated.^  And  where  a  court 
is  authorized  to  require  the  payment  of  certain  items  of 
costs,  as  a  part  of  the  penalty,  to  include  certain  items  not 
properly  chargeable  against  the  defendant  is  an  error  not 
reviewable  under  the  writ.^ 

It  is  impossible  to  extract  any  rule  on  the  subject  from 
the  authorities.  But  it  is  believed  to  be  the  better  rule 
that  the  imposition  of  a  sentence  not  authorized  by  law, 
as  respects  the  kind  and  not  the  extent,  of  such  punish- 
ment, whether  the  same  is  the  only  punishment  inflicted, 
or  is  one  imposed  in  addition  to  one  authorized  by  law,  is 
an  excess  of  jurisdiction,  for  which  habeas  corpus  is  the 
proper  remedy.  But  if  the  kind  of  sentence  imposed  is 
authorized  by  law  and  the  error  consists  in  making  such  a 
sentence  larger  or  smaller  than  the  law  allows,  it  should 
be  treated  as  an  error  merely,  which  must  be  corrected  by 
appeal  or  writ  of  error  and  not  by  habeas  corpus.*  But  in 
such  a  case  the  court  may,  in  its  discretion,  allow  the 
writ.^     In  the  one  case  the  sentence  would  be  void ;  ^  in 

1  Sennott  v.  Swan,  146  Mass.  489 ;  16  N.  E.  Rep.  448 ;  Ex  parte  Shaw,  7 
Ohio  St.  81 ;  70  Am.  Dec.  55  ;  Ex  parte  Van  Hagan,  25  Ohio  St.  426,  432 ; 
Ex  parte  Crandall,  34  Wis.  177. 

^  People  V.  Liscomb,  60  N.  Y.  559  ;  19  Am.  Rep.  211 ;  People  v.  Jacobs, 
66  N.  Y.  8;  People  v.  Baker,  89  N.  Y.  460,  467 ;  Marx  v.  Milstead,  9  S.  E. 
Rep.  617 ;  Ex  parte  Bulger,  60  Cal.  438. 

3  People  V.  Jacobs,  66  N.  Y.  8. 

*  State  V.  Sloan,  65  Wis.  647  ;  27  N.  W.  Rep.  616  ;  In  re  Graham,  74 
Wis.  450;  43  N.  W.  Rep.  148;  Ex  parte  Crandall,  34  Wis.  177;  Ross's 
Case,  2  Pick.  165. 

^  Feeley's  Case,  12  Cush.  598. 

^  Ex  parte  Town  of  Russellville,  11  Sou.  Rep.  18. 


HABEAS    CORPUS.  643 

the  other  it  would  be  voidable  only  or  erroneous.  And 
this  should  be  the  test  of  the  right  to  the  writ.^ 

It  is  not  ground  for  the  writ  that  the  sentence  imposed 
is  not  warranted  by  the  verdict  of  the  jury,  if  it  is  one 
that  might  lawfully  be  pronounced  under  any  circum- 
stances for  the  offense  alleged  in  the  indictment.^  If  the 
sentence  is  void  for  uncertainty,  this  is  sufficient  ground 
for  the  writ.^  If  the  commitment  is  for  an  imprisonment 
not  authorized  by  law,  this  is  held  to  be  good  cause  foi- 
discharging  the  prisoner  under  the  writ.* 

There  is  no  jurisdiction  to  inquire  into  the  sufficiency  of 
the  indictment  in  matters  of  specific  allegation,  which 
might  be  insufficient  on  demurrer,  if  it  describes  an  offense 
belonging  to  a  general  class  of  offenses  within  the  juris- 
diction of  the  court,  and  alleges  the  defendant  to  be  guilty 
of  such  offense.  But  if  the  indictment  does  not  charge 
an  act  that,  if  sufficiently  alleged,  would  be  within  the 
jurisdiction  of  the  court,  or  charges  an  offense  which  is 
not  a  violation  of  law  at  all,  the  accused  is  entitled  to  the 
writ.^  So  if  there  is  no  indictment  at  all  where  one  is 
required,  or  the  indictment  returned  has  been  amended, 
which  is  the  same  thing,  the  defendant  is  entitled  to  be 
discharged.^ 

The  question  as  to  the  extent  to  which  courts  may  go, 
under  the  writ  of  habeas  corpus^  in  investigating  the  suffi- 
ciency of  the  grounds  upon  which  a  prisoner  is  held  in 
custody,  often  arises  in  cases  of  the  surrender  of  fugitives 
from  justice  by  one  state  to  another,  under  the  act  of  con- 

^  State  V.  McClay,  54  N.  W.  Rep.  524  ;  Ex  parte  Roberts,  9  Nev.  44 ;  16 
Am.  Rep.  1 ;  Commonwealth  v.  Lecky,  1  Watts,  66 ;  26  Am.  Dec.  37,  41, 
note ;  Ex  parte  Parks,  93  XJ.  S.  18 ;  Ex  parte  Shaw,  7  Ohio  St.  81  ;  70 
Am.  Dec.  55. 

"  State  V.  Sloan,  65  Wis.  647  ;  27  N.  W.  Rep.  616  ;  Ex  parte  Max,  44 
Cal.  579. 

'  Ex  parte  Roberts,  9  Nev.  44. 

♦  Marx  V.  Milstead,  9  S.  E.  Rep.  617. 

*  Ex  parte  Coy,  127  U.  S.  731 ;  8  Sup.  Ct.  Rep.  1263  ;  In  re  Greenough 
31  Vt.  279 ;  Ex  parte  Semler,  41  Wis.  517,  523 ;  In  re  Kowalsky,  73  Cal. 
120;  14  Pac.  Rep.  399;  Ex  parte  Mirande,  73  Cal.  365 ;  14  Pac.  Rep.  888. 

«  Ex  parte  Bain,  121  U.  S.  1 ;  7  Sup.  Ct.  Rep.  781. 


I 


644      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 


gress.  The  general  rules  are  essentially  the  same  in  this 
class  of  cases  as  in  cases  of  detention  under  direct  process 
of  the  courts.  The  qestion  as  to  the  power  and  authority  ■ 
of  the  governor  of  a  state  to  authorize  the  arrest  and  re- 
turn of  the  party  accused  is  one  of  jurisdiction,  and  the 
question  of  the  sufficiency  of  the  warrant  is  confined  to 
matters  affecting  its  validity  and  does  not  extend  to  mere 
defects  or  irregularities  in  the  warrant  or  other  proceed- 
ings. In  other  words,  if  the  warrant  is  void  the  writ  will 
lie,  if  voidable  only,  it  will  not.*  But  the  court  may  de- 
termine, under  the  writ,  whether  the  petitioner  has  been 
charged  with  a  crime  in  the  state  from  which  he  is  alleged 
to  have  fled.^ 

The  governor  upon  w^hom  the  requisition  is  made  must 
also  determine  whether  or  not  the  accused  is  a  fugitive  from 
justice.  This  is  a  question  of  fact,  and  under  the  general 
rules  above  laid  down  could  not  be  inquired  into  under  a 
writ  of  habeas  corpus.  The  finding  of  the  governor  should 
be  held  to  be  conclusive.  But  some  doubt  has  been 
thrown  upon  this  question  by  the  decisions  of  the  supreme 
court  of  the  United  States,  in  which  the  question  whether 
the  finding  of  the  governor  is  conclusive  or  only  prima 
facie  evidence  of  the  fact  is  left  an  open  one.^  And  it  has 
been  held  that  his  finding  is  not  conclusive  but  may  be 
reviewed  by  the  courts.* 

As  to  the  question  whether  or  not  a  crime  is  charged, 
the  inquiry  does  not  extend  to  mere  defects  or  irregulari- 
ties in  the  affidavit  or  indictment  accompanying  the  requi- 
sition,^ nor  to  a  determination  of  its  sufficiency.^  But  in 
case  of  a  removal  from  one  federal  district  to  another,  the 
court  may  inquire  whether  an  oflense  against  the  United 

'  In  re  Greenough,  31  Vt.  279,  285;  Ex  parte  Spears,  88  Cal.  640;  26 
Pac.  Rep.  608. 

^  Roberts  v.  Reilly,  116  U.  S.  95 ;  6  Sup.  Ct.  Rep.  291 ;  Ex  parte  Spears, 
88  Cal.  640 ;  26  Pac.  Rep.  608. 

3  Ex  parte  Reggels,  114  U.  S.  642;  5  Sup.  Ct.  Rep.  1148;  Roberts  v. 
Reilly,  116  U.  S.  95 ;  6  Sup.  Ct.  Rep.  291. 

*  In  re  Cook,  49  Fed.  Rep.  833,  838;  Wilcox  v.  Nolze,  34  Ohio  St.  520. 

5  Ex  parte  Spears,  88  Cal.  640 ;  26  Pac  Rep.  608. 

«  Pearce  v.  State,  23  S.  W.  Rep.  15. 


HABEAS    CORPUS.  645 

States,  and  within  the  jurisdiction  of  the  Oourt  in  which 
the  indictment  is  pending,  is  charged.*  The  rules  are  the 
same,  substantially,  in  proceedings  for  the  extradition  of 
persons  at  the  instance  of  foreign  countries.^  The  federal 
courts  have  jurisdiction  in  such  cases.^  If  one  extradited 
for  one  offense  is  indicted  and  is  held  in  custody  for  an- 
other and  different  offense,  he  may  be  released  by  hahea&, 
corpus}  A  court  may  inquire  into  the  legality  of  an  im- 
prisonment by  a  legislative  body  or  of  a  body  claiming  to 
be  such.' 

There  are  exceptions  to  the  rule  that  the  writ  will  not 
lie  to  test  the  sufficiency  of  the  evidence.  For  example, 
the  writ  may  be  used  to  inquire  into  the  question  whether 
there  is  probable  cause  for  the  detention  of  a  prisoner 
upon  a  non-bailable  offense  with  a  view  to  admit  him  to 
bail,  or  discharge  him.®  So  in  some  of  the  states  the  writ 
may  be  used  to  inquire  whether,  in  case  of  the  commit- 
ment of  the  prisoner  for  trial,  the  evidence  is  such  that  he 
should  be  held,  and  if  not  to  discharge  him  from  imprison- 
ment ?  both  of  which  involve  an  examination  of  and  de- 
cision upon  the  evidence.^  In  this  class  of  cases  the  de- 
cision of  the  court  below,  as  to  the  sufficiency  of  the  evi- 
dence, will  not  be  reviewed  on  appeal.^ 

The  general  rule  is  that  if  the  petitioner  is  held  under 

1  In  re  Greene,  52  Fed  Kep.  104 ;  In  re  Terrell,  51  Fed.  Rep.  213. 

2  Oteiza  v.  Jacobus,  136  U.  S.  330 ;  10  Sup.  Ct.  Rep.  1031 ;  Stevens  v. 
Fuller,  136  U.  S.  468 ;  10  Sup.  Ct.  Rep.  911 ;  In  re  Adutt,  55  Fed.  Rep. 
376. 

» In  re  Fitton,  45  Fed.  Rep.  471. 

*  In  re  Fitton,  45  Fed.  Rep.  471 ;  Ex  parte  McKnight,  48  Ohio  St. 
588 ;  28  N.  E.  Rep.  1034. 

*  In  re  Gunn,  50  Kan.  155 ;  32  Pac.  Rep.  470. 

«  State  1'.  Herndon,  107  N.  Car.  934;  12  S.  E.  Rep.  268;  Benjamin  v. 
State,  25  Fla.  675  ;  6  Sou.  Rep.  433  ;  Commonwealth  v.  Lecky,  1  Watts 
66 ;  26  Am.  Dec.  37, 40  note  ;  Cooley  Const.  Lim.,  *p.  348  ;  In  re  Secrest,  14 
Pac.  Rep.  144. 

'  State  V.  Holm,  37  Minn.  405 ;  34  N.  W.  Rep.  748 ;  Ex  parte  Sternes, 
S2  Cal.  245  ;  23  Pac.  Rep.  38. 

*  Ex  parte  Bollman,  4  Cranch,  75. 

"  State  V.  Herndon,  107  N.  Car.  936 ;  12  S.  E.  Rep.  268. 


646        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

a  judgment  of  a  competent  court,  the  sufficiency  of  the 
judgment  or  commitment  will  not  be  inquired  into.^ 

It  is  held  that  the  question  whether  the  law  under  which 
the  court  is  acting  or  the  petitioner  held  in  custody  is  con- 
stitutional or  not  may  be  determined  under  the  writ.^  But 
this  is  a  matter  about  which  there  is  considerable  question 
and  about  which  the  authorities  are  not  agreed.  Of  course, 
if  the  question  is  as  to  the  constitutionality  of  the  law 
under  which  the  court  claims  to  exist,  or  as  to  its  jurisdic- 
tion to  act,  the  power  to  determine  the  question  properly 
arises  under  the  writ,  because  to  determine  that  question 
is  to  determine  whether  there  was  a  court,  or,  if  there  was, 
whether  it  had,  by  virtue  of  the  statute  in  question,  juris- 
diction to  act.  In  other  words,  the  question  would  be,  not 
as  to  the  validity  of  the  acts  of  a  competent  court,  but 
whether  there  was  such  a  court.^ 

But  if  the  constitutionality  of  the  statute  affects  only 
the  question  of  the  guilt  or  innocence  of  the  accused  and 
not  the  question  of  the  jurisdiction  of  the  court,  it  would 
at  first  glance  seem  to  be  equally  clear  that  the  question 
could  not  be  determined  under  the  writ  because  the  ques- 
tion as  to  the  existence  or  constitutionality  of  the  statute 
is  one  for  the  court  to  determine  and  its  ruling  thereon,  if 
wrong,  is  an  error  only,  which  can  not,  under  the  well  set- 
tled rule,  be  reviewed  by  the  writ  of  habeas  corpus.* 

But  still  it  may  well  be  said  that  the  commitment  with- 
out authority  of  law  resulting  from  the  repeal  of  a  statute 

^  Ex  parte  Kearney,  7  AVheat.  38 ;  Ex  parte  Winston,  9  Nev.  71 ;  In 
re  Donohue,  52  How.  Pr.  251. 

'  Ex  parte  Siebold,  100  U.  S.  371 ;  Sennott  v.  Swan,  146  Mass.  489;  16 
N.  E.  Rep.  448 ;  Ex  parte  Kieffer,  40  Fed.  Rep.  399 ;  In  re  Kemmler,  7 
N.  Y.  Supl.  145;  Ex  parte  Keeney,  84  Cal.  304;  24  Pac.  Rep.  31;  Ex 
parte  Rosenblatt,  19  Nev.  439;  14  Pac.  Rep.  298;  In  re  Ah  Jow,  29  Fed. 
Rep.  181 ;  United  States  v.  Patterson,  29  Fed.  Rep.  775 ;  Ex  parte  Wester- 
field,  55  Cal.  550;  36  Am.  Rep.  47. 

'  In  re  Donohue,  52  How.  Pr.  251. 

*  Ex  parte  Winston,  9  Nev.  71 ;  Ex  parte  Watkins,  3  Pet.  193;  Ex  parte 
Harris,  47  Mo.  164 ;  Ex  parte  Boeninghausen,  91  Mo.  301 ;  1  S.  W.  Rep. 
761 ;  In  re  French,  81  Wis.  597 ;  51  N.  W.  Rep.  960 ;  In  re  Donohue,  52 
How  Pr.  251. 


I 


EABEAS    CORPUS.  G47 

or  because  of  its  unconstitutionality  is  an  excess  of  juris- 
diction. In  some  of  the  cases,  where  the  statute  held  to 
be  unconstitutional  is  the  one  defining  the  offense  and  pro- 
viding for  its  punishment,  it  is  held  that  the  proceeding 
under  it  is  void,  for  the  reason  that  the  indictment  or  in- 
formation fails  to  state  a  public  offense.^ 

So  the  question  is  not  without  difiiculty.  But  it  must 
not  be  overlooked  that  some  of  the  cases  holding  that  the 
constitutionality  of  the  statute  can  not  be  inquired  into 
are  founded  upon  statutes  authorizing  the  issuing  of  the 
writ  for  specific  causes,  not  including  the  one  under  con- 
sideration.^ "Where  the  statute  claimed  to  be  invalid  af- 
fects the  sentence  to  be  imposed  and  not  the  ofiense 
charged,  it  is  held  that  the  question  as  to  its  validity  can 
not  be  raised  by  habeas  corpus.^ 

Some  of  the  cases  go  to  the  extent  of  holding  that  no 
inquiry  can  be  made  if  the  party  is  detained  under  the 
final  decree  or  judgment  of  a  competent  court,  and  that  no 
imprisonment  is  illegal  where  the  process  is  a  justification 
of  the  officer.* 

While  the  cases  holding  that  the  court  may  inquire  into 
the  constitutionality  of  a  statute,  under  the  writ,  are  in- 
consistent with  the  general  rule  that  mere  errors  are  not 
subject  to  review,  yet  the  clear  weight  of  authority  is  in 
favor  of  the  jurisdiction. 

If  the  court  has  acted  without  jurisdiction  or  has  tran- 
scended its  powers,  the  petitioner  will  be  discharged  from 
imprisonment  as  a  result  of  its  unauthorized  action,  as 
well  after  as  before  final  judgment.^ 

A  judgment  rendered  out  of  the  term  time  of  the  court 
is  void  and  subject  to  review  by  habeas  corpus.^ 

1  Ex  parte  Keeney,  84  Cal.  304 ;  24  Pac.  Rep.  34. 

2  Ex  parte  Boeningbausen,  91  Mo.  301 ;  1.  S.  W.  Rep.  761. 

'  In  re  Pikulik,  81  Wis.  158;  51  N.  W.  Rep.  261 ;  In  re  Schuster,  82 
Wis.  610;  52  N.  W.  Rep.  757. 

*  Commonwealth  v.  Lecky,  1  Watts,  66 ;  26  Am.  Dec.  37 ;  Ex  parte 
Winston,  9  Nev.  71. 

s  Ex  parte  Parks,  93  U.  S.  18,  23 ;  Ex  parte  Lange,  18  Wall.  163;  Peo- 
ple V.  Liscomb,  60  N.  Y.  559;  19  Am.  Rep.  211. 

nn  re  Juneman,  28  Tex.  App.  48(5 ;  13  S.  W.  Rep.  783. 


648      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

The  general  rule  is  that,  in  order  to  give  rise  to  the  ju- 
risdiction, there  must  be  an  actual  imprisonment  at  the 
time  the  writ  is  prayed  for.^  But  the  use  of  the  writ  is 
allowed  in  the  state  courts  to  determine  who  shall  have 
the  custody  of  infants,  in  which  cases  the  imprisonment 
or  detention  does  not  usually  exist.^ 

The  jurisdiction  under  the  writ  is  confined  to  the  single 
question  whether  the  party  in  custody  shall  be  released 
therefrom  or  remanded,  or  what,  if  any,  other  disposition 
of  his  body  shall  be  made,  and  does  not  extend  to  the  de- 
termination of  any  property  or  other  rights  growing  out 
of  the  controversy  respecting  his  confinement  or  deten- 
tion.^ 

The  writ  of  habeas  corpus  is  a  writ  of  right.*  But  the 
rierht  is  not  absolute  in  all  cases.  The  courts  have  some 
discretion  as  to  the  issuance  of  the  writ  in  particular  cases 
where  other  remedies  exist.^  The  writ  is  applicable  to  a 
case  where  one  charged  with  crime  is  not  speedily  brought 
to  trial.  The  right  to  a  speedy  trial  is  preserved  in  some 
of  the  states  by  statutory  provisions  fixing  the  time  within 
which  the  trial  shall  be  had.  And  under  these  statutes,  or 
independently  of  them,  the  party  held  for  trial  may  be 
discharged  from  custody  if  not  brought  to  trial  within  the 
time  fixed  by  statute,  or,  if  no  time  is  fixed,  within  a  rea- 
sonable time.® 

But  as  a  rule  the  failure  to  bring  the  accused  to  trial 
within  the  time  limited  by  statute  does  not  entitle  the 
party  to  his  discharge,  absolutely,  but  it  may  be  shown 
that  there  was  sufiicient  cause  for  the  delay,  to  avoid  his 

1  Spring  V.  Dahlman,  34  Neb.  692;  52  N.  W.  Rep.  567;  Wales  v.  Whit- 
ney, 114  U.  S.  564 ;  5  Sup.  Ct.  Eep.  1050. 
"^  In  re  Barry,  42  Fed.  Rep.  113. 
'  Ferguson  v.  Ferguson,  5  Mo.  197. 

*  State  V.  Langridge,  44  La.  Ann.  1014 ;  11  Sou.  Rep.  541. 

*  Ex  parte  Royall,  117  U.  S.  241 ;  6  Sup.  Ct.  Rep.  734;  United  States  v. 
Ronan,  33  Fed.  Rep.  117;  State  v.  Langridge,  44  La.  Ann.  1014;  11  Sou. 
Rep.  541 ;  Ex  parte  Kieflfer,  40  Fed.  Rep.  399 ;  Ex  parte  Mirzan,  119  U. 
S.  584 ;  7  Sup.  Ct.  Rep.  341. 

«  Patterson  v.  State,  50  N.  J.  Law,  421 ;  14  Atl.  Rep.  125 ;  In  re  Mc- 
Micken,  39  Kan.  406 ;  18  Pac.  Rep.  473. 


HABEAS    CORPUS.  649 

discharge.^  And  it  has  been  held  that  under  such  a  statute 
the  remedy  of  the  accused  is  to  move  for  a  dismissal  of 
the  prosecution,  and  that  until  it  is  dismissed  the  writ  will 
not  lie.^ 

It  has  been  questioned  whether,  in  case  the  continuance 
beyond  the  time  limited  was  by  order  of  the  court  before 
whom  the  cause  was  pending,  the  question  whether  there 
was  in  fact  sufficient  cause  for  the  delay  can  be  inquired 
into  under  the  writ.^  And  it  is  quite  clear  that  this  can 
not  properly  be  done.  In  some  instances  the  right  to 
apply  for  the  writ  is  so  limited  that  the  application  can 
only  be  made  to  the  court  or  the  judge  thereof  before 
whom  the  action  resulting  in  the  imprisonment  is  pend- 
ing.'' 

With  reference  to  the  question  of  jurisdiction  of  the 
court  in  cases  of  confinement  under  judicial  proceedings, 
it  is  usually  held  that  the  question  must  be  determined 
from  the  record,  and  that  the  recitals  in  the  record  are 
conclusive.^  But  these  general  rules  are  subject  to  excep- 
tion, and  evidence  dehors  the  record,  or  in  opposition  to 
the  mittimus  or  return  is  sometimes  allowed  to  establish 
a  want  of  jurisdiction  in  the  court,^  or  want  of  authority 
in  the  officer.  And  not  infrequently  the  jurisdiction  or 
authority,  or  the  want  or  absence  of  either,  does  not  ap- 
pear from  the  record  or  papers,  and  can  only  be  estab- 
lished by  extraneous  evidence. 

The  federal  courts  have  and  exercise  an  extensive 
and  important  jurisdiction  over  the  writ  affecting  not 
only   their    own    jurisdiction    and    powers  but    those    of 

1  Ex  parte  Bull,  42  Cal.  196. 

'  Ex  parte  Strong,  31  Pac.  Rep.  574. 

3  Patterson  v.  State,  50  N.  J.  Law,  421 ;  14  Atl.  Rep.  125. 

*  People  V.  Hefferman,  38  How.  Pr.  402. 

^  Ex  parte  Watkins,  3  Pet.  193;  In  re  Terry,  128  U.  S.  289;  9  Sup.  Ct. 
Rep.  77  ;  Ex  parte  Davis,  11  Sou.  Rep.  308  ;  Ex  parte  Scott,  70  Miss.  247  ; 
11  Sou.  Rep.  657;  Daniels  v.  Towers,  79  Ga.  785;  7  S.  E.  Rep.  120;  Ex 
parte  Twohig,  13  Nev.  302. 

^  People  V.  McLeod,  25  Wend.  483,  571 ;  37  Am.  Dec.  328 ;  Ex  parte 
Mayfield,  141  U.  S.  107 ;  11  Sup.  Ct.  Rep.  939. 


650      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

the  state  courts  also/  And  the  power  is  given  to  the 
judges  of  the  supreme  court  and  of  the  circuit  and  dis- 
trict courts.^ 

The  appellate  jurisdiction  of  the  supreme  court  of  the 
United  States,  in  this  class  of  cases,  extends  to  the  state 
courts  of  last  resort.^  But  the  jurisdiction  of  the  federal 
courts  to  issue  the  writ  in  case  of  a  prisoner  in  jail  is  lim- 
ited to  cases  where  he  is  "  in  custody  under  or  by  color  of 
the  authority  of  the  United  States,  or  is  committed  for 
trial  before  some  court  thereof;  or  is  in  custody  for  an  act 
done  or  omitted  in  pursuance  of  a  law  of  the  United 
States,  or  of  an  order,  process,  or  decree  of  a  court  or 
judge  thereof;  or  is  in  custody  in  violation  of  the  consti- 
tution or  of  a  law  or  treaty  of  the  United  States  ;  or,  being 
a  subject  or  citizen  of  a  foreign  state  and  domiciled 
therein,  is  in  custody  for  an  act  done  or  omitted  under 
any  alleged  right,  title,  authority,  privilege,  protection,  or 
exemption  claimed  under  the  commission,  or  order,  or 
sanction  of  any  foreign  state,  or  under  color  thereof,  the 
validity  and  effect  whereof  depend  upon  the  law  of  na- 
tions;  or  unless  it  is  necessary  to  bring  the  prisoner  into 
court  to  testify."  * 

The  right  of  appeal  was  given  to  the  circuit  court  of 
the  district  in  which  the  cause  was  heard  in  the  following 
cases : 

"  1,  In  the  case  of  any  person  alleged  to  be  restrained 
of  his  liberty  in  violation  of  the  constitution,  or  of  any 
law  or  treaty  of  the  United  States. 

"  2.  In  the  case  of  any  prisoner  who,  being  a  subject  or 
citizen  of  a  foreign  state,  and  domiciled  therein,  is  com- 
mitted or  confined,  or  in  custody  by  or  under  the  author- 

1  Rev.  Stat.  TJ.  S.,  sec.  751 ;  Ex  parte  Bollman,  4  Cranch,  75 ;  Ableman 
V.  Booth,  21  How.  506;  Ex  parte  Royall,  117  U.  S.  241  ;  6  Sup.  Ct.  Rep. 
734;  Ex  parte  Burrus,  136  U.  S.  586;  10  Sup.  Ct.  Rep.  850;  Ex  parte 
Watkins,  3  Pet.  193;  Cooley  Const.  Lim.,  *pp.  345,  346. 

"^  Rev.  Stat.  U.  S.,  sec.  752;  Ex  parte  Burrus,  136  U.  S.  586 ;  10  Sup. 
Ct.  Rep.  850;  Cooley  Const.  Lim.,  'pp.  345,  346. 

»  Ableman  v.  Booth,  21  How.  506 ;  Same,  11  Wis.  498,  522  note. 

*  Rev.  St.  U.S.,  sec.  753. 


■^ 


HABEAS    CORPUS.  651 

ity  or  law  of  the  United  States,  or  of  any  state,  or  process 
founded  thereon,  for  or  on  account  of  any  act  done  or 
omitted  under  any  alleged  right,  title,  authority,  privilege, 
protection,  or  exemption,  set  up  or  claimed  under  the 
commission,  order,  or  sanction  of  any  foreign  state  or 
sovereignty,  the  validity  and  effect  whereof  depend  upon 
the  law  of  nations,  or  under  color  thereof."^ 

But  this  appellate  jurisdiction  from  the  district  courts 
has  been  transferred  to  the  circuit  courts  of  appeals.^ 

The  authority  of  the  circuit  and  district  courts  is  confined 
to  the  districts  over  which  they  have  territorial  jurisdic- 
tion. No  express  authority  to  issue  the  writ,  as  a  part  of 
its  original  jurisdiction,  is  conferred  upon  circuit  courts 
of  appeals.  Formerly  the  right  of  appeal  to  the  supreme 
court  of  the  United  States  from  the  decisions  of  the  cir- 
cuit courts  was  confined  to  the  cases  mentioned  in  the  last 
clause  above.^  But  the  right  has  since  been  extended  to 
all  the  cases  in  which  appeals  were  authorized  to  be 
taken  to  the  circuit  courts  from  courts  and  judges  in- 
ferior to  it.* 

The  right  of  appeal  to  the  supreme  court  is  from  the 
circuit  court,  and  no  appeal  lies  from  a  judge  of  that  court.^ 
And  it  is  held  that  the  court  has  no  jurisdiction  to  review 
the  decision  of  a  judge  at  chambers  under  a  writ  issued 
by  it.^  The  jurisdiction  thus  given  is  in  the  circuit  and 
district  courts  original  and  in  the  supreme  court  appellate, 
for  the  reason  that  under  the  constitution  the  supreme 

1  Rev.  Stat.  U.  S.,  sec.  763. 

"26  Stat,  at  L.  626;  1  Supl.  Rev.  Stat.,  2  ed.,  901;  United  States?'. 
Fowkes,  53  Fed.  Rep.  13 ;  3  C.  C.  A.  Rep.  394. 

*  Rev.  Stat.  U.  S.,  sec.  764 ;  Ex  parte  Royall,  112  U.  S.  181  ;  5  Sup.  Ct. 
Rep.  98  ;  In  re  Neagle,  135  U.  S.  1  ;  Cunningham  v.  Neagle,  10  Sup.  Ct. 
Rep.  658. 

*  23  U.  S.  Stat,  at  L.  437  ;  1  Supl.  Rev.  Stat.  U.  S.  485  ;  Ex  parte  Royall, 
117  U.  S.  241  ;  6  Sup.  Ct.  Rep.  734  ;  Ex  parte  Burrus,  136  U.  S.  586  ;  10 
Sup.  Ct.  Rep.  850;  In  re  Neagle,  135  U.  S.  1  ;  Cunningham  v.  Neagle,  10 
Sup.  Ct.  Rep.  658. 

^  In  re  Palliser,  40  Fed.  Rep.  575  ;  Carpenter  v.  Fitzgerald,  121  U.  S, 
87  ;  7  Sup.  Ct.  Rep.  825. 
®  In  re  Metzger,  5  How.  176,  191. 


652     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

court  could  not   exercise  the  power  as  original  jurisdic- 
tion.^ 

The  efiect  of  the  construction  thus  placed  upon  the 
constitution  and  laws  is  to  give  the  supreme  court  appel- 
late jurisdiction  over  every  federal  judicial  tribunal,  how- 
ever inferior  it  may  be,  so  far  as  the  acts  of  such  courts 
may  be  reviewed  by  writ  of  habeas  corpus?  And  the  court 
has  the  power  to  review  the  action  of  other  federal  courts 
by  the  writ  of  habeas  corpus  in  cases  over  which  it  has  no 
appellate  jurisdiction  by  appeal  or  writ  of  error.^  And  on 
appeal  from  the  circuit  court  it  has  jurisdiction  to  review 
every  question  of  substance  which  the  circuit  court  could 
decide  upon  the  return  of  the  writ,  including  the  question 
of  its  own  jurisdiction.*  And  for  that  purpose  may  inquire 
into  the  evidence  upon  which  the  circuit  court  based  its  de- 
cision.® But  it  is  limited  in  its  jurisdiction,  where  the  issu- 
ance of  the  writ  affects  the  proceedings  of  the  federal  tribu- 
nals in  criminal  cases  to  the  single  question  of  the  power 
of  the  court  to  commit  the  prisoner  or  hold  him  in  custody. 
It  has  no  general  power  to  review  the  judgments  or  pro- 
ceedings of  inferior  courts,  in  criminal  cases,  by  the  use 
of  the  writ.®  And  it  has  no  jurisdiction  where  the  peti- 
tioner is  detained  under  a  warrant  issuing  from  an  inferior 
state  court  involving  a  state  law  or  ordinance  only,^  nor 
has  it  the  power,  under  the  writ,  to  release  one  from  cus- 
tody under  the  judgment  of  a  state  court  of  competent 
jurisdiction,  not  illegally  asserted,  for  mere  errors  or  ir- 

*  Ex  parte  Yerger,  8  Wall.  85  ;  Ex  parte  Bollman,  4  Crancb,  75  ;  Ex 
parte  Siebold,  100  U.  S.  371,  374;  Ex  parte  Hung  Hang,  108  U.  S.  552; 
2  Sup.  Ct.  Rep.  863. 

"^  Ex  parte  Yerger,  8  Wall.  85. 

'  Ex  parte  Siebold,  100  U.  S.  371 ;  Ex  parte  Watkins,  3  Pet.  193. 

*  Ex  parte  McCardle,  6  Wall.  318. 

^  In  re  Neagle,  135  U.  S.  1 ;  Cunningbam  v.  Neagle,  10  Sup.  Ct.  Rep. 
658. 

«  Ex  parte  Curtis,  106  U.  S.  371 ;  1  Sup.  Ct.  Rep.  381 ;  Ex  parte  Carll, 
106  U.  S.  521 ;  1  Sup.  Ct.  Rep.  535 ;  Ex  parte  Kearney,  7  Wbeat.  38 ;  Ex 
parte  Watkins,  3  Pet.  193 ;  Ex  parte  Wilson,  114  U.  S.  417 ;  5  Sup.  Ct. 
Eep.  935;  In  re  Metzger,  5  How.  176,  191. 

T  Ex  parte  Hung  Hang,  108  U.  S.  552;  2  Sup.  Ct.  Rep.  863. 


HABEAS    CORPUS.  G53 

regularities,  or  upon  the  ground  that  the  prisoner  is  inno- 
cent, or  any  other  grounds  going  to  the  merits  and  not  to 
the  question  of  jurisdiction,  although  his  defense  to  the 
action  grows  out  of  a  law  of  the  United  States.^ 

The  jurisdiction  of  the  supreme  court  is  not  wholly  ap- 
pellate. It  is  given  original  jurisdiction  in  certain  cases 
mentioned  in  the  statute.^  And  in  such  cases  it  may  issuiJ 
writs  of  habeas  corpus  as  a  part  of  its  original  jurisdiction, 
and  in  those  cases  only.^  But  it  is  held  that  the  supreme 
court  has  no  jurisdiction  of  a  petition  by  a  private  indi- 
vidual to  obtain  the  custody  of  his  child,  claimed  to  be 
unlawfully  in  the  custody  of  another  private  individual.* 

And  the  same  is  true  of  the  other  federal  courts.  Their 
jurisdiction  is  limited  to  cases  where  the  detention  of  the 
party  is  in  violation  of  the  constitution,  laws  or  treaties  of 
the  United  States,  or  where  the  question  as  to  the  legality 
of  the  custody  arises  under  the  constitution,  laws,  or  treat- 
ies of  the  United  States,  or  is  dependent  upon  them,  which 
is  not  true  of  detentions  of  such  a  character.^ 

The  federal  courts  have  no  common  law  jurisdiction. 
And  in  respect  of  their  jurisdiction  in  habeas  corpus  pro- 
ceedings, as  in  all  other  cases,  their  jurisdiction  is  meas- 
ured by  the  written  law.^  Special  provisions  are  made  for 
the  issuance  of  the  writ  by  the  federal  courts  in  certain 
cases.^  And  power  to  issue  the  writ  is  given  to  the  su- 
preme and  district  courts  of  the  territories,  and  the  judges 
thereof,  with  certain  exceptions,^  and  writs  of  error  and 
appeals  from  the  decisions  of  such  courts,  and  the  judges 

1  Ex  parte  Crouch,  112  U.  S.  178;  5  Sup.  Ct.  Rep.  96. 

2  Rev.  Stat.  U.  S.  sec.  687 ;  Const.  U.  S.  Art.  3,  sec.  3. 

'  Ex  parte  Siebold,  100  U.  S.  371 ;  Ex  parte  Barry,  2  How.  65  ;  Ex 
parte  Hung  Hang,  108  U.  S.  552 ;  2  Sup.  Ct.  Rep.  863. 

*  Ex  parte  Barry,  2  How.  65  ;  Ex  parte  Burrus,  136  U.  S.  586  ;  10  Sup. 
Ct.  Rep.  850. 

^  Ex  parte  Burrus,  136  U.  S.  586 ;  10  Sup.  Ct.  Rep.  850;  In  re  Neagle, 
135  U.  S.  1  ;  Cunningham  v.  Neagle,  10  Sup.  Ct.  Rep.  658;  In  re  Barry, 
42  Fed.  Rep.  113,  In  re  Neagle,  39  Fed.  Rep.  833;  Cooley  Const.  Lim. 
*pp.  345,  346 ;  Ex  parte  Ulrich,  43  Fed.  Rep.  661 ;  Ex  parte  Young,  50 
Fed.  Rep.  526. 

«  In  re  Barry,  42  Fed.  Rep.  113.  '  Rev.  Stat.  U.  S.  sees.  642,  643. 

8  Rev.  Stat.  U.  S.  sec.  1912. 


654     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

thereof,  to  the  supreme  court  of  the  United  States,  are 
provided  for.' 

Appeals  may  be  taken  from  the  district  to  the  su- 
preme court  of  the  territory.^  And  the  United  States  su- 
preme court  may  acquire  jurisdiction  of  a  habeas  corpus 
proceeding  by  certification  from  the  circuit  court  upon  a 
division  of  opinion  on  the  part  of  the  judges  of  said  court 
jis  in  other  cases,'  but  not  until  after  final  judgment  as  the 
proceedi?ig  is  a  civil  and  not  a  criminal  one.* 

i^either  the  supreme  court  of  the  United  States  nor  the 
supreme  court  of  the  District  of  Columbia,  has  any  appel- 
late jurisdiction  over  a  naval  court  martial  in  proceedings 
for  habeas  corpus.^  But  the  supreme  court  of  the  United 
States  has,  as  a  part  of  its  appellate  jurisdiction,  the  power 
to  inquire  into  the  authority  of  such  courts  and  the  valid- 
ity of  their  acts  upon  a  petition  to  it  for  the  writ.^  And 
the  jurisdiction  of  the  supreme  court  is  general  and  not 
limited  to  any  specific  class  or  species  of  the  writ.^  But 
the  jurisdiction  of  the  federal  courts  to  issue  the  writ  in 
favor  of  one  imprisoned  under  the  process  or  judgment  of 
a  state  court  is  limited  to  cases  where  the  prisoner  is  con- 
fined in  violation  of  some  law  or  treaty  of  the  United 
States,  or  is  in  custody  for  an  act  done  or  omitted  in  pur- 
suance of  a  law  of  the  United  States,  or  under  some  other 
circumstances  which  will  bring  the  case  within  some  prin- 
ciple upon  which  the  federal  courts  are  authorized  to  in- 
terfere,^ except  to  bring  the  party  into  court  to  testify.^ 

The  authority  of  the  federal  courts  to  issue  the  writ, 

1  Rev.  Stat.  U.  S.  sec.  1909 ;  Ex  parte  Snow,  120  U.  S.  274 ;  7  Sup.  Ct. 
Rep.  556. 

^  Rev.  Stat.  U.  S.  1910;  United  States  v.  Burdick,  1  Dak.  142;  46  N. 
W.  Rep.  571. 

'  Ex  parte  Milligan,  4  Wall.  2. 

*  Ex  parte  Tom  Tong,  108  U.  S.  556 ;  2  Sup.  Ct.  Rep.  871. 

5  Wales  V.  Whitney,  114  U.  S.  564 ;  5  Sup.  Ct.  Rep.  1050. 

^  Ex  parte  Yerger,  8  Wall.  85. 

'  Ex  parte  Bollman,  4  Cranch  75,  93. 

8  Ex  parte  Dorr,  3  How.  103;  In  re  Neagle,  39  Fed.  Rep.  833;  In  re 
Shaner,  39  Fed.  Rep.  869;  Cooley  Const.  Lim.,  ■■■pp.  345,  346;  Ex  parte 
Ulrich,  43  Fed.  Rep.  661 ;  Ex  parte  Young,  50  Fed.  Rep.  526. 

9  Ex  parte  Dorr,  3  How.  103. 


1 


HABEAS    CORPUS.  655 

even  in  cases  falling  within  their  jurisdiction,  is  not  exclu- 
sive. It  may  be  exercised  concurrently  by  the  state  courts, 
subject,  however,  to  the  linal  appellate  jurisdiction  of  the 
supreme  court  of  the  United  States.^  But  while  a  state 
court  has  undoubted  jurisdiction  to  issue  the  writ,  the 
mere  fact  that  the  petitioner  is  held  under  a  process  of  a 
federal  court,  in  a  matter  over  which  it  has  authority  ta 
act,  may,  when  brought  to  the  attention  of  the  state 
court,  preclude  further  action  on  its  part  under  the  writ.^ 
It  can  not,  under  the  proceeding  for  the  writ,  take  to  itself 
jurisdiction  to  determine  questions  involving  the  right  of 
the  prisoner  to  his  discharge,  over  which  the  federal 
courts  alone  have  jurisdiction.^  But  the  mere  fact  that  the 
petitioner  is  held  under  the  process  of  a  federal  court  does 
not  oust  the  jurisdiction  of  the  state  court.  It  has  the 
authority,  in  such  case,  as  in  all  others,  to  issue  the  writ. 
Whether,  however,  the  court  can,  in  arriving  at  a  conclu- 
sion, determine  the  constitutionality,  or  validity,  of  a  law 
of  the  United  States,  under  which  the  process  of  the  fed- 
eral court  has  issued,  has  been  much  questioned.* 

The  right  of  the  state  courts  to  investigate  the  legality 
of  a  commitment  or  holding  in  custody  by  a  federal  court 
or  by  an  officer  of  the  general  government,  of  one  of  the 
citizens  of  the  state  as  fully  as  the  same  might  be  done  by 
the  federal  courts,  involving,  in  some  of  the  cases,  a  deter- 
mination of  the  validity  of  the  law  under  which  such  court 
has  proceeded,  is  maintained  by  the  decisions  of  some  of  the 
courts  of  last  resort  in  the  states.^     But  it  has  been  denied 

^  Hurd  Habeas  Corpus,  2d  ed.  154,  156;  Robb  v.   Connolly,  111  U.  S. 
624 ;  4  Sup.  Ct.  Rep.  544. 
^  Cooley  Const.  Lim.,  *p.  347. 
'  In  re  Hopson,  40  Barb.  34;  Cooley  Const.  Lim.,  *p.  347. 

*  Ex  parte  Booth,  3  Wis.  1,  157. 

*  In  re  Booth,  3  Wis.  157,  175;  In  re  Tarble,  25  Wis.  390;  3  Am.  Rep. 
85 ;  Commonwealth  r.  Harrison,  11  Mass.  63 ;  Commonwealth  v.  (Push- 
ing, 11  Mass.  67 ;  6  Am.  Dec.  156 ;  Ex  parte  Collier,  6  Ohio  St.  55 ;  In  re 
Webb,  24  How.  Pr.  247  ;  In  re  Beswick,  25  How.  Pr.  149  ;  Commonwealth 
V.  Downes,  24  Pick.  227;  in  the  Matter  of  Martin,  45  Barb.  142;  People 
■>-.  Gaul,  44  Barb.  98;  McConologue's  Case,  108  Mass.  154;  Ex  parte 
Roberts,  16  la.  600. 


656     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

by  other  state  courts,'  and  by  the  supreme  court  of  the 
United  States.^ 

According  to  the  decisions  of  the  supreme  court  of  the 
United  States  the  state  court  has  jurisdiction  to  inquire  by 
what  authority  the  petitioner  is  restrained  of  his  liberty, 
but  when,  in  response  to  such  inquiry,  it  is  shown  that  he 
is  held  in  custody  under  the  process  of  a  federal  court,  the 
powers  of  the  state  court  are  at  an  end.  It  can  not  go 
further  and  inquire  whether  such  custody  is  lawful  or  not.^ 
And  as  in  most  of  the  states  the  applicant  for  the  writ  is 
required  to  show,  by  his  petition,  by  what  claim  of  right 
he  is  deprived  of  his  liberty,  and  the  grounds  upon  which 
he  claims  his  detention  to  be  illegal,  the  jurisdiction  will 
generally  terminate  where  it  begins.  This  being  so,  it 
would  perhaps  be  more  consistent,  and  more  in  accordance 
with  the  law  as  thus  declared,  to  say  that  the  state  courts 
have  no  jurisdiction  to  issue  and  enforce  the  writ  of 
habeas  corpus  in  any  case  where  the  petitioner  is  restrained 
of  his  liberty  under  or  by  virtue  of  the  judgment,  order, 
or  process  of  a  federal  court,  or  by  an  officer  of  the  gen- 
eral goverment  acting  under  its  laws. 

The  doctrine  that  the  state  courts  have  no  power  to  in- 
terfere is  not  confined  to  cases  where  the  prisoner  is  held 
in  custody  under  a  judgment  or  process  of  a  federal  court, 
but  is  extended  to  detentions  by  officers  or  agents  of  the 
national  government  acting  under  its  laws,*  although  in 
some  of  the  decisions  it  has  been  confined  to  cases  where 
the  custody  is  by  virtue  of  the  judgment,  order,  or  process 
of  a  federal  court  or  judge,  and  held  not  to  extend  to  cases 

>  In  re  Hopson,  40  Barb.  34;  People  v.  Fiske,  45  How.  Pr.  294;  Ohio 
&  Miss.  R.  R.  Co.  V.  Fitch,  20  Ind.  498,  .505;  Copenhaver  v.  Stewart,  24 
S.  W.  Rep.  161 ;  In  re  O'Connor,  48  Barb.  258  ;  In  re  Ferguson,  9  Johns. 
239;  State  v.  Zulich,  29  N.  J.  Law,  409. 

^Ableman  V.  Booth,  21  How.  506;  United  States  v.  Tarble,  13  Wall. 
397;  Covell  v.  He'yman,  111  U.  S.  176;  4  Sup.  Ct.  Rep.  355;  Cooley 
Const.  Lim.,  *p.  347. 

3  Ableman  v.  Booth,  21  How.  506;  Cooley  Const.  Lim.  *p.  347 

*  United  States  v.  Tarble,  13  Wall.  397 ;  In  re  Ferguson,  9  Johns.  239. 


HABEAS    CORPUS.  057 

of  detention  by  government  officers  not  acting  under  ju- 
dicial authority  or  claiming  so  to  act.^ 

The  decision?  of  the  United  States  supreme  court  on 
the  subject  are  direct  and  emphatic,  although  there  has 
been  some  division  of  opinion  on  the  part  of  the  members 
of  the  court.  But  it  can  not  be  denied  that  the  reason- 
ing of  the  decisions  on  the  other  side  is  strong  and  cogent^,. 
So  much  so  that  it  is  difficult  not  to  feel  convinced,  after 
a  reading  of  the  decisions  for  and  against  the  jurisdiction 
of  the  state  courts  in  this  class  of  cases,  that  such  juris- 
diction should  and  does  exist.  But  as  the  supreme  court 
of  the  United  States  is  the  final  arbiter  upon  the  ques- 
tion, it  must  be  taken  to  be  the  law  that  they  have  no  such 
jurisdiction.^ 

It  does  not  follow,  however,  from  the  rule  thus  estab- 
lished, that  the  state  courts  have  no  power  to  determine, 
under  an  application  for  the  writ,  the  rights,  privileges,  or 
immunities  derived  from  the  nation,  or  place  a  construc- 
tion upon  the  constitution  or  laws  of  the  United  States, 
in  proper  cases.  On  the  contrary,  it  is  distinctly  held 
that  where  the  question  is  not  as  to  the  power  or  authority 
of  the  courts  or  officers  of  the  federal  government,  but  as 
to  the  right  or  authority  of  some  one  not  acting  for  or  on 
behalf  of  the  general  government,  but  acting  under  and 
by  virtue  of  its  laws,  or  claiming  to  do  so,  the  state 
courts  have  jurisdiction  to  inquire  into  the  validity  of  his 
acts,  and  in  so  doing  to  pass  upon  and  construe  the  laws 
of  the  United  States  under  which  he  claims  to  have  au- 
thority to  act.^ 

The  federal  courts  have  jurisdiction  to  discharge  one 
held  in  custody  in  violation  of  the  constitution  or  laws  of 
the  United  States,  although  so  held  in  custody  by  a  state 

1  Exparte  Barrett,  42  Barb.  479 ;  Ohio  &  Miss.  R.  R.  Co.  v.  Fitch,  20 
Ind.  498,  505. 

'  Cooley  Const.  Lim.  *p.  347. 

3  Robb  V.  Connolly,  111  U.  S.  624;  4  Sup.  Ct.  Rep.  544 ;  Ex  parte  Roy- 
all,  117  U.  S.  241 ;  6  Sup.  Ct.  Rep.  734.  A  different  rule  was  declared  in 
the  case,  In  re  Robb,  19  Fed.  Rep.  26,  where  it  was  held  that  because 
the  petitioner  was  acting  under  a  law  of  the  United  States  the  federal 
courts  had  exclusive  jurisdiction  over  the  writ. 

42 


658       COMMON   LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

court. ^  But  the  fact  that  in  the  trial  of  the  accused  for 
the  offense  the  state  court  must  pass  upon  the  validity  or 
construction  of  the  laws  of  the  United  States,  in  determin- 
ing his  guilt  or  innocence,  does  not  give  the  federal  courts 
such  jurisdiction.  The  state  court  has  the  same  power  to 
support,  construe,  and  give  effect  to  the  laws  of  the  gen- 
eral government  that  the  federal  courts  possess,  and  tlie 
fact  that  it  may  err  in  the  construction  of  such  laws,  to 
the  injury  of  a  party  charged  with  a  crime,  gives  the 
federal  courts  no  jurisdiction  to  interfere  by  habeas  corpii^.'^ 

Generally  it  is  held  that  an  order  or  judgment  denying 
a  writ  of  habeas  corpus  does  not  bar  another  application 
for  the  writ.^  But  it  is  made  a  bar  by  statute  in  some  of 
the  states.*  And  it  is  held,  in  some  of  the  cases,  to  be  a 
bar  even  where  the  proceeding  is  before  a  judge  and  not 
before  a  court.^  And  it  is  held  that  a  judgment  discharg- 
ing the  petitioner  is  a  bar.^  But  this  is  usually  the  result 
of  statutory  provisions. 

As  to  the  question  of  venue,  the  courts  usually  have  ju- 
risdiction over  the  territory  covered  by  their  general  juris- 
diction,^ and  in  some  of  the  states  the  writ  is  required  to 
be  applied  for  or  returned  at  a  particular  place.*  The 
writ  may  properly  be  issued  by  one  court  or  judge  and  be 
made  returnable  before  another.^  The  effect  of  an  applica- 
tion for  a  change  of  venue  has  been  considered  in  previous 
sections.^" 

1  Ex  parte  Koyall,  117  U.  S.  241 ;  6  Sup.  Ct.  Eep.  734;  Ex  parte  Neagle, 
39  Fed.  Eep.  833 ;  In  re  Monroe,  46  Fed.  Rep.  52. 

2  Ex  parte  Ulrich,  43  Fed.  Rep.  661  ;  Ex  parte  Young,  50  Fed.  Rep. 
526. 

■'  Ex  parte  Cuddy,  40  Fed.  Rep.  62  ;  Weir  v.  Marley,  99  Mo.' 484;  12  S. 
AV.  Rep.  79S ;  In  re  Ring,  28  Cal.  248. 

*  Ex  parte  Hamilton,  65  Miss.  98 ;  3  Sou.  Rep.  68. 

^  Ex  parte  Scott,  1  Dak.  140;  46  N.  W.  Rep.  512. 

6  Weir  V.  Marley,  99  Mo.  484;  12  S.  W.  Rep.  798;  Grady  v.  Superior 
Court,  64  Cal.  155;  30  Pac.  Rep.  613. 

'  In  re  Strickland,  41  La.  Ann.  324 ;  6  Sou.  Rep.  577. 

8  Ex  parte  Trader,  24  Tex.  App.  393;  6  S.  W.  Rep.  533 ;  In  re  Doll,  47 
Minn.  518;  50  N.  W.  Rep.  607. 

»  Ex  parte  Trader,  24  Tex.  App.  393 ;  6  S.  W.  Rep.  533. 

'**  Ante,  sees.  46,  47,  51. 


QUO    WARRANTO.  659 

It  was  there  shown  that  in  some  cases,  depending  upon 
the  grounds  for  the  change,  the  application  therefor,  prop- 
erly made,  deprived  the  court,  absolutely,  of  all  jurisdic- 
tion to  proceed  further  in  the  action.  But  even  in  the 
states  in  which  this  is  held  to  be  the  efiect  of  the  applica- 
tion it  is  maintained  that  habeas  corpus  is  not  the  proper 
remedy  where  the  court  from  which  the  change  is  asked 
proceeds  with  the  action  in  such  way  as  to  result  in  im- 
prisonment.^ 

The  case  cited  is  clearly  inconsistent  with  the  well-set- 
tled rule  in  Indiana  that  the  filing  of  a  proper  aifidavit  for 
a  change  of  venue  makes  it  the  imperative  duty  of  the 
court  to  grant  the  change,  and  that  after  the  filing  of  such 
an  affidavit  and  a  demand  for  the  change  the  court  can 
exercise  no  further  jurisdiction  in  the  case,  except  upon 
the  theory  that  the  court  has  jurisdiction  to  determine  the 
sufficiency  of  the  affidavit,  and  that  its  ruling  upon  that 
question  is  an  error  which  can  only  be  reviewed  by  writ 
of  error  or  appeal.  The  authorities  in  that  state  hold  that 
upon  the  filing  of  a  sufficient  affidavit  the  jurisdiction  of 
the  court  is  at  an  end.^  Following  this  doctrine  to  its  le- 
gitimate and  logical  results,  it  was  held  in  a  later  case  that 
a  defendant  in  a  criminal  case  having  filed  the  proper  affi- 
davit was  entitled  to  his  discharge  where  the  court  pro- 
ceeded with  the  action.^ 

83.  Quo  WARRANTO. — The  writ  of  quo  warranto  is  a  com- 
mon-law prerogative  writ  in  the  nature  of  a  writ  of 
right.*  It  was  formerly  an  original  writ  issuing  out  of 
chancery,^  and  was  a  purely  civil  remedy.^     Its  object  is 

1  Turner  v.  Conkey,  132  Ind.  248;  31  N.  E.  Rep.  777. 

^  Krutz  V.  Howard,  70  Ind.  174;  Shoemaker  v.  Smith,  74  Ind.  71,  76; 
Smelzer  v.  Lockhart,  97  Ind.  315;  Manly  v.  State,  52  Ind.  215;  Duggius 
r.  State,  66  Ind.  350. 

^  Smelzer  v.  Lockhart,  97  Ind.  315.  But  this  case  is  expressly  over- 
ruled in  Turner  v.  Conkey,  132  Ind.  248;  31  N.  E.  Rep.  777,  above 
cited. 

*  19  Am.  &  Eng.  Enc.  of  Law,  660 ;  High  Ext.  Leg.  Rem.,  sec.  591 ;  3 
Blk.  Com.  »p.  262. 

^  High  Ext.  Leg.  Rem.,  sec.  592. 

^  High  Ext.  Leg.  Rem.,  sec.  600 ;  State  r.  Yail,  53  Mo.  97. 


660       COMMON   LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

to  inquire  into  and  determine  the  right  to  hold  and  exer- 
cise a  public  office  or  franchise.^ 

The  writ  has  been  superseded  almost  entirely  in  England 
and  in  this  country  by  the  information  in  the  nature  of  quo 
warranto,  which  is  a  diiterent  form  of  proceeding  to  ac- 
complish practically  the  same  objects.^  The  modern  pro- 
ceeding by  information  has  been  defined  as  "  an  informa- 
tion, criminal  in  form,  presented  to  a  court  of  competent 
jurisdiction,  by  the  public  prosecutor,  for  the  purpose  of 
correcting  the  usurpation,  misuser,  or  non-user  of  a  pub- 
lic office  or  corporate  franchise."  ^ 

The  definition  does  not  cover  the  proceeding,  which  is 
not  criminal  in  form,  nor  required  to  be  presented  by  the 
public  prosecutor,  in  many  of  the  states,  but  is,  perhaps,  as 
accurate  as  it  can  be  made  as  applicable  to  the  various 
statutes  modifying  and  controlling  the  jurisdiction  and 
practice  in  such  proceedings.  In  many  of  the  states  stat- 
utes have  been  enacted  providing  for  the  contest  of  elec- 
tions to  public  offices  and  the  procedure  in  such  cases,*  and 
proceedings  in  the  nature  of  quo  warranto  have  been  pro- 
vided by  statute  in  some  of  the  states.*  So  in  some  of  the 
states  special  provisions  are  made  for  the  contest  of  elec- 
tions to  offices  of  private  corporations.^  And  in  some  both 
the  writ  of  quo  warranto  and  the  information  have  been 
abolished  and  a  civil  action  substituted  in  their  place.^  But 
this  is  a  change  in  the  form  of  the  proceeding  rather  than 
in  its  substance  and  leaves  the  remedy  much  as  it  was  be- 
fore.^ 

1  19  Am.  &  Eng  Enc.  of  Law,  660;  State  v.  Evans,  3  Ark.  585 ;  36  Am. 
Dec.  468;  State  v.  Brown,  31  N.  J.  Law,  355. 

=  19  Am.  &  Eng.  Enc.  of  Law,  661 ;  High  Ext.  Leg.  Rem.,  sees.  591, 
600  ;  3  Blk.  Com.  ■■p.  264  ;  4  Blk.  Com.  *pp.  312,  441 ;  Commonwealth  v. 
Murray,  11  Serg.  &  Raw.  73 ;  14  Am.  Dec.  614 ;  State  v.  Brown,  31  N.  J. 
Law,  355 ;  State  v.  Vail,  53  Mo.  97. 

3  High  Ext.  Leg.  Rem.,  sees.  591,  603. 

*  People  V.  Cook,  8  N.  Y.  67 ;  59  Am.  Dec.  451. 

5  State  V.  Vail,  53  Mo.  97. 

«  Wickersham  v.  Brittan,  93  Cal.  34  ;  28  Pac.  Rep.  792 ;  29  Pac.  Rep.  51. 

'  People  V.  Cook,  8  N.  Y.  67 ;  59  Am.  Dec.  451 ;  State  v.  Messmore,  14 
Wis.  115. 

8  People  V.  Hall,  80  N.  Y.  117  ;  People  v.  Boughton,  5  Colo.  487. 


-^- 


QUO    WARRANTO.  u61 

So  it  may  be  said  that  as  a  general  rule  the  proceeding, 
whatever  its  form  may  be,  has  become  almost  entirely  stat- 
utory in  this  country  and  must  be  controlled  by  statutory 
provisions.^  But,  while  the  information  in  the  nature  of  quo 
ivarranio  has,  in  a  great  measure,  superseded  the  writ  of 
quo  warranto,  courts  may. still  exercise  jurisdiction  by  and 
through  the  writ  itself  unless  prohibited  by  coiistitutionaL 
or  statutory  law.-  And  it  is  still  enforced  in  some  of  the 
states.^ 

So  a  court  having  constitutional  jurisdiction  of  in- 
formations in  the  nature  of  quo  warranto  may  exercise  such 
jurisdiction  notwithstanding  a  statute  providing  a  differ- 
ent form  of  action  for  the  usurpation  of  an  office  or  fran- 
chise.* And  the  remedies  by  way  of  contesting  elections 
under  statutes  providing  therefor  are  generally  held  to  be 
cumulative  and  not  to  deprive  the  courts  of  the  power  to 
inquire  into  the  matter  of  elections  to  office  by  quo  warranto 
or  the  information  in  the  nature  of  quo  warranto.^ 

A  different  rule  is  maintained,  however,  in  some  of  the 
states,  where  it  is  held  that  the  proceeding  provided  for 
the  contest  of  elections  takes  away  the  power  of  the  courts 
to  apply  the  remedy  of  quo  warranto  to  accomplish  the 
same  result.^  But  this,  in  some  of  the  cases,  is  based  upon 
the  ground  that  the  statute  providing  the  special  remedy 
appears  by  its  terms  to  intend  that  such  remedy  shall  be 

»  Williams  v.  State,  69  Tex.  368;  6  S.  W.  Rep.  845;  State  v.  Mills,  27 
Pac.  Rep.  560;  People  v.  Hall,  80  N.  Y.  117 ;  People  v.  Dashaway  Ass'n, 
84  Cal.  114;  24  Pac.  Rep.  277;  State  v.  Vail,  53  Mo.  97. 

^  Attorney-General  v.  Barstow,  4  Wis.  567. 

^  High  Ext.  Leg.  Rem.  sec.  609.  *  People  v.  Boughton,  5  Colo.  487. 

^  High  Ext.  Leg.  Rem.,  sec.  624;  State  v.  Boyd,  31  Neb.  682;  48  N.  W. 
Rep.  739;  State  r.  Frazier,  28  Neb.  438;  44  N.  W.  Rep.  471 ;  People  v. 
Londoner,  13  Colo.  303 ;  22  Pac.  Rep.  764 ;  Conger  v.  Convery,  52  N.  J. 
Law,  417;  20  Atl.  Rep.  166;  Convery  v.  Conger,  53  N.  J.  Law,  658;  24 
Atl.  Rep.  1002;  Snowball  v.  People,  35  N.  E.  Rep.  538;  People  v.  Hall,  80 
N.  Y.  117;  State  r.  Melike,  81  Wis.  574;  51  N.  W.  Rep.  875. 

*  State  V.  Marlow,  15  Ohio  St.  114,  133 ;  Commonwealth  v.  Leech,  44 
Pa.  St.  332;  Commonwealth  v.  Garrigues,  28  Pa.  St.  9;  70  Am.  Dec.  103; 
Commonwealth  v.  Baxter,  35  Pa.  St.  263;  People  v.  Every,  38  Mich.  405; 
Parks  V.  State,  13  Sou.  Rep.  756. 


662        COxMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTTOX. 

exclusive.  "Where  this  intention  does  not  appear  the  rem- 
edy should  be  regarded  as  cumulative  only,  as  it  is  so  con- 
sidered in  most  of  the  cases. 

Courts  of  equity  have  no  jurisdiction  to  declare  a  for- 
feiture against  a  corporation  and  oust  it  of  its  franchises 
unless  such  jurisdiction  is  expressly  conferred  upon  it  by 
statute.^ 

The  state  constitutions  usually  confer  power  upon  the 
courts  of  general  jurisdiction  to  issue  writs  of  quo  war- 
ranto? This  has  generally  been  held  to  include  informa- 
tions in  the  nature  of  quo  warranto,^  and  to  confer  original 
and  not  appellate  jurisdiction.*  Therefore,  a  court  having 
only  appellate  jurisdiction,  and  not  authorized  expressly 
to  entertain  jurisdiction  in  quo  warranto,  has  no  such  juris- 
diction.^ 

The  jurisdiction  includes  the  power  to  inquire  into  the 
existence  of  private  corporations  claiming  to  act  under  or 
by  virtue  of  franchises  granted  by  the  state,  or  by  the  laws 
of  the  state  authorizing  the  organization  of  corporations.^ 
and  the  right  to  hold  office  under  such  corporations,^  and 
to  inquire  whether  existing  corporations  have  a  right  to 
exist,  or  to  exercise  any  or  all  of  the  franchises  they  as- 
sume to  exercise.^ 

The  power  also  extends  to  municipal  corporations  ^  and 
their  officers ;  ^°  and  it  is  held,  that  in  order  to  determine 
whether  an  officer  is  rightfully  holding  and  exercising  the 
duties  of  a  municipal  office,  it  may  be  determined  whether 

1  Baker  v.  Backus,  32  111.  79,  110;  Hullman  r.  Honcomp,  5  Ohio  St. 
237. 

*  High  Ext.  Leg.  Rem.,  sees.  610,  616  ;  State  v.  Baker,  38  Wis.  71. 

3  High  Ext.  Leg.  Rem.,  sec.  610 ;  State  v.  West  Wis.  Ry.  Co.,  34  Wis. 
197 ;  State  v.  Anderson,  26  Fla.  240 ;  8  Sou.  Rep.  1 ;  State  v.  Gardner,  54 
N.  W.  Rep.  606. 

*  Attorney-General  v.  Blossom,  1  Wis.  317. 

*  Ex  parte  Attorney-General,  1  Cal.  85. 
6  High  Ext.  Leg.  Rem.,  sec.  648. 

^  High  Ext.  Leg.  Rem.,  sec.  653. 

^  Commonwealth  v.  Towanda  Water  Works,  15  Atl.  Rep.  440. 
» People  V.  City  of  Oakland,  92  Cal.  611;  28  Pac.  Rep.  807;  State  v. 
Tracy,  48  Minn.  497 ;  51  N.  W.  Rep.  613. 
10  People  V.  Carpenter,  24  N.  Y.  86. 


QUO    AVARRANTO.  663 

the  corporation  itself  is  legally  in  existence  or  not.^     But 
there  are  cases  holding  to  the  contrary.^ 

As  the  jurisdiction  extends  to  the  question  of  the  exist- 
ence, and  of  the  right  to  exist,  the  inquiry  may  be  whether 
the  persons  claiming  to  be  a  corporation  have  been  legally 
organized  as  such,  or  whether,  if  legally  organized,  the 
corporation,  not  the  individuals,  has  done  or  omitted  to  do, 
some  act  which  forfeits  its  charter  or  deprives  it  of  the 
right  to  exist.^  In  the  one  case  the  proceeding  is  against 
the  individuals  to  declare  that  they  are  not  a  corporation.* 
In  the  other  it  is  a  proceeding  against  the  corporation  to 
declare  that  it  shall  exist,  or  exercise  some  or  all  of  its 
franchises,  no  longer.^ 

It  is  generally  held  that  to  bring  the  action  against  a 
corporation,  as  such,  is  to  admit  that  it  is  a  corporation, 
and,  therefore,  where  it  is  alleged  that  no  corporation  ex- 
ists the  action  must,  necessarily,  be  against  the  persons 
who  are  claiming  to  be  such.^  But  in  some  of  the  cases 
against  municipal  corporations  it  is  held  that  the  proceed- 
ing is  properly  instituted  against  the  corporation  by  name 
as  a  de  facto  corporation/ 

1  People  V.  Carpenter,  2-4  N.  Y.  86 ;  Territory  v.  Armstrong,  6  Dak.  226 ; 
50  N.  W.  Rep.  832. 

2  People  V.  Gunn,  85  Cal.  238;  24  Pac.  Rep.  718;  High  Ext.  Leg.  Rem., 
sec.  696. 

3  1  Elks.  Com.,  *p.  485;  State  r.  Atchison,  etc.,  R.  R.  Co.,  24  Neb.  143; 
8  Am.  St.  Rep.  164;  38  N.  W.  Rep.  43. 

*  People  V.  City  of  Spring  Valley,  129  111.  169 ;  21  N.  E.  Rep.  843 ;  Peo- 
ple V.  Stanford,  77  Cal.  360 ;  18  Pac.  Rep.  85 ;  19  Pac.  Rep.  693 ;  Mud 
Creek  Draining  Co.  v.  State,  43  Ind.  236;  State  v.  Hannibal,  etc.,  Gravel 
R.  Co.,  37  Mo.  App.  496,  503. 

*  State  V.  Somerby,  42  Minn.  55 ;  43  N.  W.  Rep.  689 ;  People  v.  City  of 
.Spring  Valley,  129  111.  169;  21  N.  E.  Rep.  843;  People  v.  Stanford,  77  Cal. 
360;  18  Pac.  Rep.  85;  19  Pac.  Rep.  693;  State  r.  Taylor,  25  Ohio  St.  279; 
State  V.  Pittsburg  Y.  &  A.  R.  Co.,  33  N.  E.  Rep.  1051  ;  State  v.  Atchison, 
etc.,  R.  R.  Co.,  24  Neb.  143 ;  8  Am.  St.  Rep.  164;  38  N.  W.  Rep.  43. 

«  People  V.  City  of  Spring  Valley,  129  111.  169 ;  21  N.  E.  Rep.  843 ;  Peo- 
ple V.  Stanford,  77  Cal.  360;  18  Pac.  Rep.  85;  19  Pac.  Rep.  693;  State  v. 
Cincinnati  Gas  Light,  etc.,  Co.,  18  Ohio  St.  262;  Mud  Creek  Draining 
Co.  V.  State,  43  Ind.  236;  State  v.  Hannibal,  etc.,  Gravel  R.  Co.,  37  Mo. 
App.  496,  503. 

^  State  V.  Board  of  Commissioners,  50  N.  J.  Law,  457 ;  14  .Atl.  Rep.  560; 


6G4       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

In  this  respect  a  distinction  is  made,  in  some  of  the 
cases,  between  a  municipal  and  a  private  corporation  ;  and 
it  is  held  that  in  all  cases  where  the  invalidity  of  the  char- 
ter of  a  municipal  corporation  is  attacked  the  municipality 
is  a  necessary  party,  and  that  the  question  can  not  be  deter- 
mined in  a  proceeding  against  one  claiming  to  be  an  officer 
of  the  municipality.^  And  cases  can  be  found  which  a}i- 
ply  the  same  rule  to  private  corporations.^  But  the  well- 
settled  rule  is  the  other  way,  as  it  affects  private  corpora- 
tions, as  shown  above. 

A  distinction  is  also  made  between  a  case  where  it  is 
charged  that  the  alleged  corporation  never  existed  and  one 
where  it  is  alleged  that  it  has  existed,  as  a  de  facto  corpora- 
tion, and  the  proceeding  is  to  dissolve  it,  on  the  ground  of 
defects  in  its  organization.^  But  this  distinction  does  not 
seem  to  rest  on  any  solid  foundation.  A  proceeding  by 
quo  warranto  involves  the  existence  de  jure  of  a  corpora- 
tion, and  the  question  whether  it  has  been,  or  is,  a  de  facto 
corporation,  is  wholly  immaterial. 

Formerly  the  proceeding  was  regarded  as  a  criminal 
proceeding,  and  the  writ,  or  the  information,  was,  there- 
fore, prosecuted  in  the  name  of  the  prosecuting  officer  of 
the  government.*  Under  most  of  the  statutes  of  the  pres- 
ent day  the  proceeding  is  treated  as  civil  in  its  nature.^ 
But  it  is  in  a  sense  a  criminal  proceeding  in  its  nature  and 
object?,*^  and  is  held  to  be  a  criminal  proceeding  in  some 
of  the  states.^     It  is  not  intended  to  enforce  official  action. 

State  V.  Village  of  Bradford,  32  Vt.  50 ;  People  v.  City  of  Riverside,  66 
Cal.  288;  5  Pac.  Rep.  350 ;  People  v.  Gunn,  85  Cal.  238  ;  24  Pac.  Rep.  718; 
State  V.  Tracy,  4S  Minn.  497;  51  N.  W.  Rep.  613. 

1  People  V.  Gunn,  85  Cal.  238 ;  24  Pac.  Rep.  718;  High  Ext.  Leg.  Rem., 
sec.  696. 

»  People  V.  Flint,  64  Cal.  49  ;  28  Pac.  Rep.  495. 

3  People  V.  Montecito  Water  Co.,  97  Cal.  276;  32  Pac.  Rep.  236. 

*  High  Ext.  Leg.  Rem.,  sec.  591 ;  4  Blk.  Com.  «p.  312. 

5  19  Am.  &  Eng.  Enc.  of  Law,  662;  Jones  r.  State,  112  Ind.  193;  13  N. 
E.  Rep.  416 ;  State  v.  Kupferle,  44  Mo.  154 ;  100  Am.  Dec.  265 ;  Davis  v. 
State,  75  Tex.  420 ;  12  S.  W.  Rep.  957 ;  State  v.  Evans,  33  S.  Car.  612 ;  12 
S.  E.  Rep.  816 ;  State  v.  Vail,  53  Mo.  97. 

«4  Blk.  Com.*p.  312. 

'  People  V.  Ridgley,  21  111.  04. 


QUO    WAEEAXTO.  665 

as  in  case  of  mandamus,^  nor  to  forbid  it  as  by  prohibi- 
tion,^ or  injunction,^  nor  to  divest  a  corporation  of  the 
ownership  of  property,*  but  to  enforce  a  penalty  for  doing 
or  failing  to  do  some  act  forbidden  or  required  by  law  to 
be  done.^ 

The  penalty  imposed  is  generally  nothing  more  than  the 
deprivation  of  the  corporation  or  person  of  the  enjoyment 
of  a  right,  office  or  franchise.  Formerly  there  was  added 
to  this  a  pecuniary  penalty  or  fine,®  and  this  penalty  is 
still  imposed  under  the  statutes  of  some  of  the  states,^ 
while  in  others  the  courts  are  allowed,  in  their  discretion, 
to  impose  a  fine  in  lieu  of  the  judgment  of  ouster.^ 

The  writ  or  information  is  not  allowed  as  of  course,  as 
a  rule,  but  is  only  issued  by  leave  of  court  first  obtained, 
particularly  where  it  is  prosecuted  in  the  interest  of  a  pri- 
vate individual.^  There  is  a  difierence  in  this  respect,  how- 
ever, between  the  writ  of  quo  warranto  or  an  information 
on  behalf  of  the  state,  by  the  proper  officer,  and  a  pro- 

^  State  V.  Shakespeare,  41  La.  Ann.  156 ;  6  Sou.  Rep.  592. 
2  Bruner  v.  Superior  Court,  92  Cal.  239 ;  28  Pac.  Rep.  341 ;   State  v. 
Ev'ans,  3  Ark.  585  ;  36  Am.  Dec.  468. 

*  People  V.  Whitcomb,  55  111.  172;  High  Ext.  Leg.  Rem.,  sec.  637; 
Hinkley  r.  Breen,  55  Conn.  119 ;  9  Atl.  Rep.  31 ;  Stultz  r.  State,  65  Ind. 
492. 

*  State  V.  Pittsburg  Y.  &  A.  R.  Co.,  33  N.  E.  Rep.  1051. 

^  The  case  of  People  v.  City  of  Oakland,  92  Cal.  611 ;  28  Pac.  Rep.  807, 
is  opposed  to  the  well  settled  rule  that  the  proceeding  can  not  be  main- 
tained to  prevent  wrongful  action  by  a  corporation.  That  was  a  pro- 
ceeding to  prevent  a  city  from  enforcing  taxation  upon,  and  governing 
territory  outside  of  its  limits.  But  this  is  upon  the  ground  that  the  ex- 
ercise of  the  power  of  taxation  is  itself  the  usurpation  of  a  franchise. 
See  also  City  of  East  Dallas  v.  State,  73  Tex.  371 ;  11  S.  W.  Rep.  1030. 
But  see  to  the  contrary,  Stultz  v.  State,  65  Ind.  492.  The  remedy  has 
also  been  allowed  to  prevent  a  judge  from  holding  a  term  of  court  in  a 
place  not  organized  as  a  county.  State  v.  Osborn,  36  Kan.  530 ;  13  Pac. 
Rep.  850. 

«  4  Blk.  Com.  *p.  312. 

'  State  V.  Haines,  48  N.  J.  Law,  25;  8  Atl.  Rep.  723. 

8  People  V.  Improvement  Co.,  103  111.  491. 

9  High  Ext.  Leg.  Rem.,  sees.  607,  608,  609 ;  People  v.  Waite,  70  111.  25; 
Vrooman  v.  Michie,  69  Mich.  42;  36  N.  W.  Rep.  749;  People  v.  North 
Chi.  Ry.  Co.,  88  111.  537;  State  v.  Smith,  48  Vt.  266;  People  v.  Keeling, 
4  Colo.  129;  State  v.  Tolan,  33  N.  J.  Law,  195. 


666      COMMON  LAW,  EQUITY,  AXD  STATUTORY  JnUSDIGTIOX. 

ceeding  in  behalf  of  a  private  individual.  In  the  formei 
case  no  leave  is  necessary.^  But  it  is  otherwise  in  the  lat- 
ter, in  some  of  the  states,  where  the  proceeding  is  treated  as 
an  ordinary  one  to  be  commenced  and  prosecuted  as  of 
right  and  without  leave  of  court. 

A  court  of  superior  jurisdiction  may  refuse  to  entertain 
the  proceeding  on  the  ground  that  it  may  be  prosecuted  in 
local  courts  of  inferior  jurisdiction.^  In  most  of  the  states 
the  proceeding  is  still  required  to  be  commenced  and  pros- 
ecuted in  the  name  of  the  state  or  some  officer  of  the  state,^ 
either  for  the  people  generally,  or  on  the  relation  and  for 
the  benefit  of  some  citizen  having  a  peculiar  interest  in 
the  controversy,  or,  in  some  of  the  states,  on  the  relation 
of  a  voter  and  tax-payer  having  no  other  interest.*  But 
even  this  is  not  required  in  some  of  the  states.  The  pro- 
ceeding is  allowed  to  be  instituted  by  a  private  individual 
where  the  proper  officer  refuses  to  act,'  and  in  some  states 
without  calling  upon  such  officer,  upon  leave  granted, 
where  the  individual  has,  or  claims  to  have,  a  superior 
claim  to  the  office,^  or  without  leave  in  other  states/  But 
in  such  cases  the  proceeding  is  a  civil  statutory  proceed- 
ing affecting  primarily  a  mere  private  right  and  differs  es- 
sentially from  the  proceeding  by  quo  warranto  or  informa- 
tion in  the  nature  of  quo  warranto  as  well  understood. 

There  is  a  clear  distinction  between  an  information  by 
the  proper  officer  of  the  state  on  its  behalf  which  may  be 
presented  as  of  right  without  leave,  and  one  by  or  on  be- 
half of  private  relators,  which  can  only  be  presented  by 
leave  of  court,  unless  otherwise  provided  by  statute.^ 

It  is  usually  held  that  the  remedy  can  be  enforced  in  fa- 
vor of  a  private  individual  only  as  against  an  officer,  or 

'  State  V.  Stone  25  Mo.  555.  ^  gt^te  v.  Vail,  53  Mo.  97. 

3  State  V.  Mayor,  49  N.  J.  Law,  515;  10  Atl.  Rep.  377. 

*  State  V.  Hall,  111  N.  Car.  369;  16  S.  E.  Rep.  420. 

5  State  V.  Frazier,  28  Neb.  438;  44  N.  W.  Rep.  471. 

«  Vrooman  v.  Michie,  69  Mich.  42  ;  36  N.  W.  Rep.  749  ;  People  v.  Board 
of  Supervisors,  51  N.  W.  Rep.  1114. 

^  State  V.  Mills,  27  Pac.  Rep.  560. 

»  State  r.  Mayor,  49  N.  J.  Law,  515 ;  10  Atl.  Rep.  377  ;  People  v.  North 
Chi.  Ry.  Co.,  88  111.  537. 


QUO    WARRANTO.  667 

one  claiming  to  be  an  officer  of  a  corporation,  and  not 
against  the  corporation ;  and  that  all  proceedings  to 
inquire  into  the  existence  of  the  corporation,  or  its  right 
to  exist,  directly  or  indirectly,  must  be  instituted  and  car- 
ried on  in  the  name  of  the  state  ;^  but  the  right,  on  the  part 
of  the  state,  to  oust  one  who  is  claiming  to  exercise  the 
duties  of  an  office,  on  the  ground  that  no  such  office  ex-^ 
ists,  by  reason  of  the  fact  that  the  municipality  has  not 
been  legally  organized,  has  been  maintained  under  the 
codes  and  statutes  of  some  of  tlie  states,  although  the 
common  law  rule  was  undoubtedly  the  other  way.^ 

In  order  to  authorize  the  issuance  of  the  writ  an  actual 
user  or  possession  of  the  office  or  franchise  must  be  shown. 
A  mere  claim  of  right  to  such  user  is  not  enough.^  In 
most  of  the  states  jurisdiction  to  issue  the  writ  or  enter- 
tain the  information  is  conferred  upon  courts  of  superior 
jurisdiction,  and  particularly  the  appellate  courts  of  last 
resort,  by  the  constitution.  Where  so  conferred  it  can  not 
be  taken  away  by  statute,*  unless  such  power  is  conferred 
upon  the  legislature  by  the  constitution.* 

The  power  to  issue  the  writ  or  to  entertain  an  appeal  in 
this  class  of  cases  is  sometimes  limited  by  the  amount  in 
controversy,®  but  this  is  not  usually  the  case. 

The  constitutionality  of  a  statute  may  be  tested  by  the 
proceeding;^  but  only  where  the  question  of  the  right  to 
exercise  the   office  or  franchise  is  affected  by  it  and  not 

1  State  V.  Mayor,  49  N.  J.  Law,  515 ;  10  Atl.  Rep.  377  ;  People  v.  North 
€hi.  Ry.  Co.,  88  111.  537;  State  v.  Vickers,  51  N.  J.  Law,  180;  17  Atl. 
Rep.  153. 

^  State  I'.  Parker,  25  Minn.  215;  People  v.  Carpenter,  24  N.  Y.  86; 
Commonwealth  v.  Fowler,  10  Mass.  290. 

*  People  V.  Thompson,  16  Wend.  654. 

*  State  V.  Baker,  38  Wis.  71 ;  People  v.  Bingham,  82  Cal.  238 ;  22  Pac. 
Rep.  1039 ;  Conger  v.  Convery,  52  N.  J.  Law,  417 ;  20  Atl.  Rep.  166. 

*  State  V.  Marlow,  15  Ohio  St.  114,  133;  State  v.  Harmon,  31  Ohio  St. 
250,  260. 

*  State  V.  Shakespeare,  41  La.  Ann.  156 ;  6  Sou.  Rep.  592 ;  People  v. 
Perry,  79  Cal.  105 ;  21  Pac.  Rep.  423 ;  People  v.  Bingham,  82  Cal.  238 ; 
22  Pac.  Rep.  1039. 

'  Attorney-General  v.  Perkins,  73  Mich.  303;  41  N.  W.  Rep.  426;  Peo- 
ple V.  Riorden,  73  Mich.  508  ;  41    X.  W.  Rep.  482. 


668       COMMOM  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

where  the  question  is  as  to  the  power  to  do  some  act  by- 
virtue  of  the  statute.^ 

The  jurisdiction  to  inquire  into  the  right  to  hold  public 
offices  is  not  confined  to  any  class  or  classes  of  oflices,  but 
extends  to  all,  executive,  judicial,  legislative,  adminis- 
trative, ministerial,  and  military.^ 

Sometimes  the  power  to  determine  the  right  to  an  ofiice 
in  a  legislative  body  is  vested  in  the  body  itself,  in  wliicli 
case  it  is  sometimes  held  that  the  jurisdiction  thus  granted 
is  exclusive  and  that  the  courts  have  no  power  to  inquire 
into  such  right,^  especially  where  such  power  is  vested  in 
the  legislative  body  by  the  constitution.* 

In  other  of  the  cases,  however,  a  different  view  of  the 
matter  is  taken,  it  being  held  that  the  jurisdiction  of  the 
courts  is  not  taken  away  by  vesting  the  same  jurisdiction 
in  the  body  of  which  the  party  to  be  affected  is,  or  claims 
to  be,  a  member.^  This  is  the  better  rule  on  the  subject 
where  the  power  of  the  legislative  body  is  merely  stat- 
utory. In  those  states  in  which  it  is  held  that  a  statutory- 
jurisdiction  to  hear  a  contest  by  the  body  of  which  the 
party  claims  to  be  a  member  is  exclusive,  it  is  held  that 
this  only  extends  to  the  mere  question  whether  the  party 
has  been  elected  to  the  office  or  not  and  that  the  courts 
still  have  the  power  to  inquire  whether  there  is  in  fact 
any  such  office  or  whether  there  is  any  law  authorizing  the 
election.^ 

The  jurisdiction  does  not  depend  upon  the  manner  in 
which  the  right  to  hold  an  office  is  claimed  to  have  been 
obtained,  whether  by  charter,  by  appointment,  or  by  pop- 

^  People  V.  Whitcomb,  55  111.  172 ;  State  v.  Baughman,  38  Ohio  St.  455, 
459. 

2  High  Ext.  Leg.  Rem.,  sees.  634,  635,  637  ;  State  v.  Boyd,  31  Neb.  682 ; 
48  N.  W.  Rep.  739. 

3  People  V.  Metzker,  47  Cal.  524 ;  State  v.  Berry,  47  Ohio  St.  232 ;  24 
N.  E.  Rep.  266. 

*  State  V.  Tomlinson,  20  Kan.  692. 

*  People  V.  Hall,  80  N.  Y.  117 ;  People  v.  Bingham,  82  Cal.  238  ;  22  Pac. 
Rep.  1039  ;  State  v.  Anderson,  26  Fla.  240;  8  Sou.  Rep.  1. 

^  Commonwealth  v.  Meeser,  44  Pa.  St.  341 ;  Commonwealth  v.  Fowler,, 
10  Mass.  290;  State  v.  O'Brien,  47  Ohio  St.  464;  25  N.  E.  Rep.  121. 


QUO    WARRANTO.  669 

ular  election,  but  extends  to  all  cases. ^  In  cases  of  popu- 
lar elections  the  returns  or  certificates  of  canvassing  boards 
or  officers  are  not  conclusive  upon  the  courts,^  nor  is  the 
certificate  or  commission  issued  by  the  governor  or  other 
proper  officer  conclusive.^ 

The  remedy  is  extraordinary  and  will  not  be  adminis- 
tered where  the  party  has  an  adequate  remedy  by  ordinary 
proceedings  at  law;  *  but  the  fact  that  another  remedy  is 
given  to  private  individuals  does  not  take  away  the  right 
of  the  state  to  the  remedy  of  quo  loarrayito.^ 

In  order  to  authorize  a  forfeiture  of  the  franchises  of  a 
corporation,  at  the  instance  of  the  state,  the  acts  com- 
plained of  as  working  a  forfeiture  must  be  such  as  work 
or  threaten  a  substantial  injury  to  the  public;  ^  and,  there- 
fore, if  the  wrongs  complained  of  affect  the  stockholders 
of  the  corporation  only,  and  they  have  another  remedy, 
the  courts  will  not  interfere  by  quo  warrayitoj 

The  remedy  is  only  applicable  where  the  public  has  an 
interest,  and,  therefore,  can  not  be  used  against  persons 
alleged  to  have  assumed  a  merely  private  office  or  trust 
not  affecting  the  public  interests,^  nor  can  it  be  used 
to  test  the  right  to  exercise  a  mere  temporary  employ- 
ment.® 

Under  the  proceeding,  instituted  on  behalf  of  the  peo- 
ple, or  on  the  relation  of  a  private  individual,  it  is  usually 
held  that  the  question  as  to  the  defendant's  right  to  an 
office  alone  will  be  determined  and  not  whether  the  relator 

'  High  Ext.  Leg.  Rem.,  see.  626. 

'  High  Ext.  Leg.  Rem.,  sees.  638,  639.  »  State  v.  Vail,  53  Mo.  97. 

*  High  Ext.  Leg.  Rem.,  sec.  617;  Tarbox  v.  Sughrue,  36  Kau.  225;  12 
Pac.  Rep.  935 ;  People  v.  Cooper,  139  111.  461  ;  29  N.  E.  Rep.  872. 

*  Commonwealth  v.  Towanda  Water  Works,  15  Atl.  Rep.  440 ;  Terri- 
tory V.  Virginia  Road  Co.,  2  Mont.  96. 

6  State  V.  Minnesota,  etc.,  Co.,  40  Minn.  213;  41  N.  W.  Rep.  1020;  At- 
torney-General V.  Detroit  Suburban  Ry.  Co.,  96  Mich.  65;  55  N.  W. 
Rep.  562. 

'  State  V.  Minnesota,  etc.,  Co.,  40  Minn.  213;  41  N.  AV.  Rep.  1020. 

*  High  Ext.  Leg.  Rem.,  sees.  620,  625;  Commonwealth  v.  Dearborn,  15 
Mass.  125. 

9  Bruner  v.  Superior  Court,  92  Cal.  239,  248 ;  28  Pac.  Rep.  341  ;  People 
*.  Cain,  47  N.  W.  Rep.  484. 


670       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

was  elected;*  but  a  different  rule  prevails  where  a  contest 
of  the  office,  by  or  on  behalf  of  one  claiming  the  office,  is 
allowed  by  statute.  In  such  cases  the  question  is  one  of 
right  between  the  two  claimants,  and  the  relator,  or  con- 
testant, can  only  recover  upon  his  own  right  to  the  office, 
and  he  is  entitled  to  have  his  right  determined,  and  if 
elected,  to  have  the  office  awarded  to  him  in  addition  to 
the  usual  judgment  of  ouster  against  the  defendant.^  In 
such  cases  the  relator  must  establish  his  right  to  the  office.^ 
A  foreign  corporation  may  be  deprived  of  the  right  to  do 
business  in  a  state  on  account  of  wrongful  acts  committed 
by  it  in  connection  with  its  franchise  to  do  business- 
therein.* 

84.  New  trials  and  vacation  of  judgments.  There  are 
various  ways  by  which  a  party  may  be  relieved  from  an 
erroneous  or  void  judgment,  amongst  others  by  a  new 
trial,  by  vacation  of  judgment  on  motion  made  in  the 
court  in  which  the  judgment  was  rendered,^  by  injunc- 
tion," by  proceedings  for  a  new  trial  in  a  court  of  equity,^ 
by  writ  of  error,®  by  appeal,^  by  writ  of  audita  querela,^" 
by  certiorari,^^  by  bill  of  review,  or  in  the  nature  of  a  bill 

1  State  V.  Lane,  16  R.  I.  620;  18  Atl.  Rep.  1035. 

'  People  V.  Ryder,  12  N.  Y.  433;  People  v.  Londoner,  13  Colo.  303;  22 
Pac.  Rep.  764. 

3  State  V.  Hamilton,  29  Neb.  198  ;  45  N.  W.  Rep.  279 ;  State  v.  Kennerly, 
26  Fla.  608;  8  Sou.  Rep.  310. 

*  State;  V.  Western  Un.,  etc.,  Soc,  47  Ohio  St.  167  ;  24  N.  E.  Rep.  392; 
State  V.  Fidelity,  etc.,  Ins.  Co.,  49  Minn.  538;  41  N.  W.  Rep.  108;  State 
V.  Fidelity,  etc.,  Co.,  77  la.  648;  42  N.  W.  Rep.  509;  State  v.  Fidelity, 
etc.,  Ins.  Co.,  49  Ohio  St.  440;  31  N.  E.  Rep.  658. 

5  1  Black  on  Judg.,  sees.  297,  303 ;  Kemp  v.  Cook,  18  Md.  130;  79  Am. 
Dec.  681. 
®  Ante,  sec.  79. 
'  Freeman  on  Judg.,  sec.  484a. 

*  Post,  sec.  85  ;  Freeman  on  Judg.,  sec.  94  ;  1  Black  on  Judg.,  sec.  300. 

*  Post,  sec.  88. 

i**  Freeman  on  Judg,,  sec.  95 ;  1  Black  on  Judg.,  sec.  299;  Sawyer  w. 
Cross,  65  Vt.  158 ;  26  Atl.  Rep.  528. 
"  Post,  sec.  86. 


NEW    TRIALS    AND    VACATION    OF    JUDGMENTS.  671 

of  review,  in  a  court  of  equity,^  by  a  writ  of  review,^  by 
a  writ  of  recordari,^  or  by  direct  action.* 

With  respect  to  the  writ  audita  querela  it  has  become  al- 
most obsolete,  although  still  existing  in  some  of  the  states. 
Its  object  is  to  relieve  a  party  from  the  wrongful  acts  of 
his  adversary  and  to  permit  him  to  show  matter  of  dis- 
charge which  may  have  occurred  since  the  rendition  of 
the  judgment.  It  is  in  the  nature  of  a  bill  in  equity  hav- 
ing the  incidents  of  a  regular  suit.^ 

As  to  the  proceedings  by  w^rit  of  error,  certiorari,  appeal, 
and  review,  they  will  be  considered  in  other  sections.^ 

It  is  not  so  important,  in  this  connection,  to  dwell  upon 
the  forms  of  proceeding  by  which  a  party  may  be  relieved 
from  a  judgment,  as  to  determine  the  extent  to  which  the 
courts  may  go  in  such  cases,  and  by  what  courts  the  re- 
lief may  be  administered.  And,  like  almost  every  ques- 
tion that  can  arise  with  respect  to  the  jurisdiction  of 
courts,  the  subject  is  controlled  in  part  by  the  common 
law  and  in  part  by  statutory  provisions  in  the  different 
states. 

The  power  to  grant  new  trials,  in  cases  tried  before 
them,  is  inherent  in  all  courts  of  superior  jurisdiction.^ 
The  same  is  true  of  the  power  to  vacate  their  own  judg- 
ments.^ And  being  inherent  the  power  can  not  be  taken 
from  them  by  statute.^ 

"Whether  courts  of  inferiorjurisdiction  have  such  inherent 
power  or  not,  is  a  matter  of  much  question.  Many  of  the 
cases  confine  the  power  to  courts  of  record,^"  and  others  hold 

'  Freenian  on  Judg.,  sec.  484a  ;  1  Black  on  Judg.,  sec.  301 ;  Story  Eq. 
PL,  sec.  426. 

*  Post,  sec.  87;  In  re  Pedrorena,  22  Pac.  Rep.  71. 

3  King  V.  Wilmington  &  W.  R.  Co.,  112  N.  Car.  318;  16  S.  E.  Rep, 
929. 

*  1  Black  on  Judg.,  sec.  302;  Earle  v.  Earle,  91  Ind.  27. 

^  Freeman  on  Judg.,  sec.  95.  *  Post,  sees.  8-5,  86,  87,  88. 

'  Ante,  sec.  27;  Commonwealth  v.  McElhaney,  111  Mass.  439. 

*  Ante,  sec.  27;  Freeman  on  Judg.,  sees.  98,  99;  1  Black  on  Judg.,  sec. 
497  ;  Vanderbilt  v.  Schreyer,  81  N.  Y.  646. 

'  Ante,  sees.  24,  27 ;  1  Black  on  Judg.,  see.  298. 
1°  Ante,  sec.  27,  p.  180. 


672        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

that  inferior  courts  have  no  such  power,  without  determin- 
ing what  are  and  what  are  not  courts  of  inferior  juris- 
diction.^ 

Some  of  the  cases  make  a  distinction  between  the  power 
to  vacate  or  modify  a  judgment  and  the  power  to  grant 
new  trials,  holding  that  the  former  exists  in  all  courts  of 
record,  but  not  the  latter.^  And  it  is  held  that  where  the 
power  exists  at  common  law  it  may  be  taken  away  by 
statute.^  The  effort  has  been  made  in  earlier  sections  of 
this  work  to  find  the  dividing  line  between  courts  of  in- 
ferior and  those  of  superior  jurisdiction,  but  with  very  in- 
different success.* 

The  dividing  line  has  grown  less  distinct,  if  possible,  of 
later  years;  and  at  the  present  time  there  are  but  few 
courts  which  do  not  possess  power  over  their  own  records, 
or  proceedings,  to  the  extent  of  granting  new  trials  and 
vacating  their  own  judgments,  although  such  do  exist  in 
some  of  the  states  under  the  limitations  of  their  statutes 
or  decided  cases.  It  is  a  limitation,  however,  that  is  not 
supported  by  any  sound  reason,  and  has,  probably  for  that 
reason,  been  very  generally  removed,  or  held  not  to  exist.' 
Yet  it  is  very  generally  held  that  inferior  statutory  courts 
have  only  such  powers  as  are  expressly  conferred  upon 
them  by  the  statute  and  such  incidental  powers  as  are 
necessary  to  carry  out  the  jurisdiction  expressly  conferred  ; 
and  that,  therefore,  they  have  no  general  equity  powers, 
independently  of  the  statutes,  which  will  authorize  them 
to  vacate  or  annul  a  judgment  for  fraud  or  upon  other 
grounds.® 

While  these  inherent  powers  still  exist  in  the  courts, 
they  may  nevertheless  be  limited  by  statutory  law  and  the 

^  Ante,  sec.  27,  p.  180;  Bartling  r.  Jamison,  44  Mo.  141. 

"  Bartling  v.  Jamison,  44  Mo.  141. 

'  Cortleyou  v.  Ten  Eyck,  22  N.  J.  Law,  45.  *  Ante,  sees.  6,  7. 

5  Ante,  sec.  27;  Rottman  v.  Schmucker,  94  Mo.  139;  7  S.  W.  Rep.  117; 
Clements'  Appeal,  25  N.  J.  Eq.  508. 

«  Brown  v.  Goble,  97  Ind.  86 ;  Doctor  v.  Hartman,  74  Ind.  221 ;  Foist 
V.  Coppin,  35  Ind.  471 ;  Corby  v.  Wayne  Probate  Judge,  96  Mich.  11 ;  55 
N.  W.  Rep.  386;  State  v.  Duncan,  56  N.  W.  Rep.  214. 


NEW    TRIALS    AND    VACATION    OF    JUDGEMENTS.  673 

time  and  manner  of  their  exercise  regulated  within  proper 
limits/  And  this  has  been  done  almost  universally.  The 
statutes  on  the  subject  differ  in  many  respects.  They 
specify,  as  a  rule,  the  grounds  upon  which  new  trials  may 
be  granted,  provide  the  means  or  the  proceedings  by  which 
relief  by  way  of  new  trial,  or  the  vacation  of  judgments, 
may  be  obtained,  the  time  when  relief  shall  be  demanded^ 
and  otherwise  regulate  the  proceedings  by  which  relief 
may  be  had. 

It  will  aid  us  in  arriving  at  the  true  rules  affecting  juris- 
diction in  this  class  of  proceedings  if  we  keep  in  mind  the 
fact  that  the  power  to  grant  new  trials,  and  vacate  judg- 
ments, existed  before  these  statutes  were  enacted,  and  that 
the  jurisdiction  still  exists  independently  of,  and,  some- 
times, in  spite  of  them.  In  other  words,  the  statutes  are 
not  grants  of  jurisdiction,  but  limitations  upon  a  jurisdic- 
tion already  existing.  But  this  inherent  power  which  ex- 
ists without  the  aid  of  written  law,  and  of  which  the 
courts  can  not  be  deprived  by  the  legislature,  does  not 
apply  to  all  of  the  causes  for  which  new  trials  may  be 
granted.  It  exists  for  the  protection  of  the  courts  and 
litigants  from  fraudulent  imposition,  and  from  the  effects 
of  pretended  judgments  which  the  court  never  intended 
to  render,  which  were  obtained  through  mistake  or  inad- 
vertence, or  which  are  void  for  other  reasons.  Respecting 
the  right  to  new  trials,  or  other  relief,  on  account  of  mere 
errors,  the  subject  is  within  the  legislative  control.  But, 
while  the  legislature  may  control  and  regulate  the  inherent 
powers  of  the  courts  to  grant  new  trials  or  vacate  judg- 
ments, it  can  not,  under  the  guise  of  regulation,  take  away 
or  materially  impair  the  right  of  litigants  to  the  protec- 
tion of  the  courts  through  the  exercise  of  these  powers.^ 

It  was  the  well-settled  rule  at  common  law  that  courts 
had  full  control  over  their  judgments  until  the  end  of  the 
term  at  which  they  were  rendered ;  that  until  the  end  of  the 

'  Ante  sec.  27 ;  Fox  v.  Meachim,  6  Neb.  530 ;  Brown  v.  Goble,  97  Ind.  86. 
'  Brown  v  Kalamazoo  Circuit  Judge,  42  N.  W.  Rep.  827. 
43 


674        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

term  the  proceedings,  although  closed  in  fact,  ^ve^e  treated 
as  being  injiere  and  the  judgment  rendered,  although  final 
in  form,  as  not  being  final  until  the  close  of  the  term. 
Therefore  the  court  had  full  jurisdiction,  during  the  term, 
to  grant  a  new  trial  or  modify  or  vacate  the  judgment  on 
its  own  motion  or  on  the  application  of  a  party.' 

But  when  the  term  closed  the  judgment  became  final 
and  the  court  lost  all  power  and  control  over  it  and  could 
neither  grant  a  new  trial  nor  modify  nor  vacate  the  judg- 
m.ent  for  errors  of  law  in  the  proceedings,  except  upon  the 
commencement  of  such  proceedings  as  would  give  it  juris- 
diction anew.^  And  it  is  held  in  the  federal  courts  that  this 
can  not  be  done  by  motion  and  service  of  notice  upon  the 
attorney  who  acted  as  such  for  the  party  proceeded  against, 
pending  the  action,  on  the  ground  that  the  power  of  the 
attorney  to  bind  his  client  must  be  held  to  have  ceased 
with  the  final  judgment  unless  the  contrary  is  shown.^ 

In  order  to  give  the  court  jurisdiction  in  such  cases,  no- 
tice of  the  application,  in  whatever  form  it  may  be  made, 
is  necessary.*  Kotice  may  be  served  out  of  the  state.* 
Notice  may  be  waived  by  appearance  or  otherwise,  as  in 
other  cases.^  And  the  requirement  that  the  judgment 
must  be  vacated  during  the  term  may  be  waived  by  con- 
sent of  parties,  and  upon  such  consent  the  judgment  may 
be  set  aside  and  a  new  trial  granted  at  a  subsequent  time.^ 

'  Freeman  on  Judg.,  sec.  90 ;  1  Black  on  Judg.,  sec.  305 ;  Wiggin  v. 
Superior  Court,  68  Cal.  398 ;  9  Pac.  Rep.  646 ;  Rottman  r.  Schmucker, 
94  Mo.  139;  7  S.  W.  Rep.  117 ;  Kelty  v.  High,  29  W.  Va.  381 ;  1  S.  E.  Rep. 
561 ;  Bronson  v.  Schulten,  104  U.  S.  410. 

"  Freeman  on  Judg.,  sees.  96,  103;  1  Black  on  Judg.,  sec.  306;  Wiggin 
V.  Superior  Court,  68  Cal.  398 ;  9  Pac.  Rep.  646 ;  Central  Trust  Co.  r. 
Grant  Locomotive  Works,  135  U.  S.  207;  10  Sup.  Ct.  Rep.  736;  United 
States  V.  Wallace.  46  Fed.  Rep.  569;  Grames  v.  Hawley,  50  Fed.  Rep.  319; 
Spafford  v.  City  of  Janesville,  15  Wis.  474 ;  Alabama,  etc.,  Ry.  Co.  v. 
Bolding,  69  Miss.  255;  13  Sou.  Rep.  844. 

3  Grames  v.  Hawley,  50  Fed.  Rep.  319. 

*  Freeman  on  Judg.,  sec.  103;  Vallejo  v.  Green,  16  Cal.  161 ;  Reilly  v. 
Ruddock,  41  Cal.  312  ;  Hettrick  v.  Wilson,  12  Ohio  St.  136  ;  80  Am.  Dec. 
337 ;  Nuckolls  v.  Irwin,  2  Neb.  60. 

^  Darrence  v.  Preston,  18  la.  396. 

«  Acock  V.  Halsey,  90  Cal.  215  ;  27  Pac.  Rep.  193. 

'  Gage  V.  City  of  Chicago,  141  111.  642;  31  N.  E.  Rep.  163. 


I 


NEW    TRIALS    AND    VACATION    OF    JUDGMENTS.  675 

Conforming  to  the  common  law  rule  it  is  provided  in 
most  of  the  statutes  on  the  subject  that  proceedings  for  a 
new  trial,  or  for  the  vacation  of  judgments,  must  be  com- 
menced during  the  term  at  which  the  judgment  is  ren- 
dered.^ And  where  there  is  no  statute  on  the  subject  the 
rule  is  the  same  as  at  common  law.^  But  this  is  not  so  in 
all  of  the  states.  In  some  there  are  no  terms  of  court,  and- 
in  those  states  a  definite  time  is  fixed  within  which  the 
proceedings  must  be  instituted.^ 

If  the  application  is  based  upon  some  cause  not  within 
the  statute  limiting  the  time  it  must  be  made  within  a 
reasonable  time.*  And  whether  the  time  is  limited  to  the 
term  or  to  some  other  fixed  time,  the  limitation  is  one  by 
which  the  parties  and  courts  are  bound,  and  in  order  to 
give  the  court  jurisdiction  to  proceed,  the  necessary  steps 
must  be  taken  within  the  time  limited.*  But  if  the  mo- 
tion is  made  in  time  the  failure  of  the  court  to  act  upon 
it  will  not  deprive  the  party  of  his  rights  except  where  it 
is  required  by  statute  that  the  motion  shall  be  acted  upon, 
as  well  as  submitted  or  filed,  within  a  limited  time.® 

A  different  rule  prevails,  however,  in  some  of  the  states,^ 

'  1  Black  on  Judg.,  sec.  306 ;  Campbell  v.  Conover,  26  111.  64  ;  Krutz  v. 
Craig,  53  Ind.  561 ;  Beals  v.  Beals,  20  Ind.  163;  Ex  parte  Holmes,  21  Neb. 
324;  32  N.  W.  Eep.  69;  Palatka  &  I.  R.  Ey.  Co.  v.  State,  23  Fla.  546 ;  3 
Sou.  Rep.  158. 

'  Rottman  v.  Schmucker,  94  Mo.  139 ;  7  S.  W.  Rep.  117. 

»  Wiggin  V.  Superior  Court,  08  Cal.  398 ;  9  Pac.  Rep.  646. 

*  Wiggin  V.  Superier  Court,  68  Cal.  398 ;  9  Pac.  Rep.  646 ;  Norton  v. 
Atchison,  etc.,  R.  R.  Co.,  97  Cal.  388;  30  Pac.  Rep.  585  ;  32  Pac.  Rep. 
452;  Langans  Estate,  74  Cal.  353;  16  Pac.  Rep.  188. 

^  Ante,  sec.  27;  Fox  v.  Meacham,  6  Neb.  5.30;  Moore  v.  Superior  Court, 
86  Cal.  495;  25  Pac.  Rep.  22;  Bell  r.  Thompson,  19  Cal.  707;  Wallace  v. 
Center,  67  Cal.  133;  7  Pac.  Rep.  441  ;  People  v.  Harrison,  84  Cal.  607; 
24  Pac.  Rep.  311  ;  Jacks  v.  Baldez,  97  Cal.  91  ;  31  Pac.  Rep.  899;  School 
District  v.  Chicago  Lumber  Co.,  41  Kan.  618;  21  Pac.  Rep.  599;  Brown 
V.  Goble,  97  Ind.  86;  State  v.  Williams,  48  Ark.  227;  2  S.  W\  Rep.  843; 
Krutz  V.  Craig;  53  Ind.  561  ;  Emison  v.  Shepard,  121  Ind.  184  ;  22  N.  E. 
Rep.  883  ;  Mattern  v.  Sage,  3  N.  Y.  Supl.  120;  Schwartz  v.  Oppenheimer, 
90  Ala.  462 ;  8  Sou.  Rep.  36. 

«  Johnston  v.  Simmons,  77  Ga.  298 ;  2  S.  E.  Rep.  469 ;  Harris  v.  State,  24 
Neb.  803;  40  N.  W.  Rep.  317 ;  Niles  v.  Parks,  49  Ohio  St.  370;  34  N.  E. 
Rep.  735. 

'  City  of  Siloam  Springs  v.  McPhitridge,  53  Ark.  21  ;  13  S.  W.  Rep.  137. 


676       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

and  of  course  a  statute  requiring  that  the  motion  shall  be 
heard,  as  well  as  made,  during  the  term  is  binding,  and 
the  motion  can  not  be  heard  thereafter.'  But  the  contrary 
has  been  held  on  the  ground  that  the  statute,  so  far  as  it 
requires  action  by  the  court  within  a  specified  time,  is 
merely  directory.^ 

If  a  court  acts  after  the  time  limited,  it  is  without  ju- 
risdiction and  its  proceedings  are  void.^  There  are  cases, 
however,  which  hold  the  making  of  the  motion  for  a  new 
trial  at  a  subsequent  term  to  be  a  mere  irregularity.* 

The  time  can  not  be  extended  by  the  court  unless  au- 
thority therefor  is  given  by  the  statute,  and  then  it  must 
be  given  within  the  time  and  in  the  manner  provided  by 
law.'  But  time  may  be  given  with  the  consent  of  par- 
ties,^ or  the  parties  may  extend  it  by  stipulation,^  even  af- 
ter the  time  allowed  by  law  has  expired  before  the  stipu- 
lation is  made.^ 

But  the  inherent  power  by  which  courts  may  protect 
their  jurisdiction  by  relieving  a  party  from  the  fraud  of 
his  adversary,  or  his  own  mistake  or  inadvertence,  ex- 
tends to  a  failure  to  act  in  time  in  a  matter  of  this  kind, 
and  upon  a  proper  showing  such  relief  may  be  granted 
and  the  party  secured  in  his  rights.^ 

There  are  statutory  exceptions  to  the  rule  that  the  pro- 
ceedings must  be  commenced  within  the  time  limited  in 
order  to  give  the  court  jurisdiction.     These  exceptions  are 

1  Molair  v.  Port  Royal,  etc.,  Ry.  Co.,  31  S.  Car.  510;  10  S.  E.  Rep.  243. 

2  Corner  v.  Chaffee^  5  Colo.  383. 

3  State  V.  Williams,  48  Ark.  227 ;  2  S.  W.  Rep.  843 ;  Thomson  v.  Thom- 
son, 73  Wis.  84 ;  40  N.  W.  Rep.  671 ;  State  v.  Walls,  113  Mo.  42  ;  20  S.  W. 
Rep.  883 ;  Burroughs  v.  Taylor,  17  S.  E.  Rep.  745  ;  Greenup  v.  Crooks,  50 
Ind.  410;  Ex  parte  Holmes,  21  Neb.  324 ;  32  N.  W.  Rep.  69 ;  Schwartz  v. 
Oppenheimer,  90  Ala.  462;   8  Sou.  Rep.  36. 

*  Larson  v.  Ross,  57  N.  W.  Rep.  323. 

*  Clark  V.  Crane,  57  Cal.  629 ;  Krutz  v.  Craig,  53  Ind.  561 ;  Cutsinger  v 
Nebeker,  58  Ind.  401. 

®  Cutsinger  r.  Nebeker,  58  Ind.  401. 

'  East  V.  Mooney,  7  Utah,  414 ;  27  Pac.  Rep.  4 ;  Simpson  v.  Budd,  91 
Cal.  488 ;  27  Pac.  Rep.  758. 
8  Simpson  v.  Budd,  91  Cal.  488;  27  Pac.  Rep.  758. 
»  Thomas  v.  Morris,  8  Utah,  284  ;  31  Pac.  Rep.  446. 


II 


NEW    TRIALS    AND    VACATION    OF    JUDGMENTS.  G71 

usually  made  in  cases  of  fraud,  mistake  or  excusable  neg- 
lect, which  should  entitle  the  party  to  relief,  irrespective 
of  the  time  fixed.  In  such  cases  a  longer  time  is  usually 
given.^  And  independently  of  such  statutory  exceptions, 
and  in  spite  of  statutory  limitations,  courts  have  the  in- 
herent power  to  set  aside  their  judgments  and  grant  the  in- 
jured party  relief,  on  the  ground  of  fraud  in  obtaining  thenif 
by  the  opposite  party,  or  for  other  reasons  which  would 
render  the  enforcement  of  the  judgment  unconscionable.^ 
So  courts  have  inherent  power  to  open  up  their  judg- 
ments, in  furtherance  of  justice,  for  other  causes  than 
those  of  fraud  or  mistake;  for  example,  for  the  purpose 
of  letting  in  new  parties  whose  presence  is  necessary  to 
the  full  determination  of  the  matter  in  controversy.^ 

Some  of  the  cases  go  so  far  as  to  hold  that  the  limita- 
tion as  to  time  does  not  deprive  the  courts  of  their  inhe- 
rent power  to  relieve  a  party  from  a  judgment  rendered 
against  him  and  that  this  may  be  done  after  the  time  lim- 
ited, notwithstanding  the  statute.* 

But  it  is  believed  that  such  a  doctrine  can  not  be  sus- 
tained. It  is  certainly  a  reasonable  regulation  of  the  ex- 
ercise of  the  inherent  power  of  the  courts,  in  this  class  of 
cases,  to  provide"  that  the  relief  shall  be  asked  for  and 
granted  within  a  time  limited,  so  long  as  the  limitation  as 
to  the  length  of  time  is  a  reasonable  one.  There  is  no 
difference  in  principle,  and  should  be  none  in  practice  in 
this  respect,  between  a  motion  for  a  new  trial  and  a  motion 
or  other  proceeding  to  vacate  a  judgment.  And  it  is  uni- 
formly held  that  statutes  limiting  the  time  within  which 
motions  for  new  trials  shall  be  made  are  binding  on  the 
courts,  as  has  been  shown  above.  But  this  is  subject,  as 
above  stated,  to  the  rule  that  such  limitations  do  not  ap- 

'  1  Black  on  Judg.,  sec.  311 ;  Freeman  on  Judg.,  sec.  105;  In  re  Ped- 
rorena,  22  Pac.  Rep.  71  ;  Hass  v.  Billings,  42  Minn.  63 ;  43  N.  W.  Rep. 
797  ;  Thomas  r.  Morris,  8  Utah,  284 ;  31  Pac.  Rep.  446. 

'  Norton  v.  Atchison,  etc.,  R.  R.  Co.,  97  Cal.  388  ;  30  Pac.  Rep.  585 ; 
32  Pac.  Rep.  452. 

'  Ladd  V.  Stevenson,  112  N.  Y.  325 ;  19  N.  E.  Rep.  842. 

*  Kieffer  v.  Grand  Trunk  Ry.  Co.,  8  N.  Y.  Supl.  230. 


678       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

ply,  and  are  not  generally  intended  to  apply,  to  causes  af- 
fecting the  validity  of  the  judgment. 

In  some  of  the  states,  it  is  provided  that  applications  to 
vacate  judgments  shall  be  made  not  only  during  the  term, 
but  within  a  certain  number  of  days  after  the  judgment  is 
rendered,  which  may  terminate  the  time  before  the  expi- 
ration of  the  term.  This  brings  the  statute  in  conflict 
with  the  rule  that  courts  have  full  control  over  their  judg- 
ments until  the  close  of  the  term.  It  has  been  held  under 
such  circumstances  that  the  action  of  the  court  in  granting 
or  refusing  a  new  trial  during  the  term  may  be  regarded 
as  an  exercise  of  the  general  powers  of  the  court  and  be 
upheld,  in  the  absence  of  a  showing  to  the  contrary  or 
that  there  was  an  abuse  of  such  general  power  and  control 
over  its  judgments,  notwithstanding  the  proceeding  was 
not  instituted  within  the  time  limited  by  the  statute.^ 

But  there  is  no  apparent  reason  why  the  legislature 
may  not  limit  the  time  for  making  the  application  in  the 
manner  mentioned,  so  far  as  it  may  control  the  inherent 
power  of  the  court  at  all.  If  the  time  is  a  reasonable 
one,  it  is  a  reasonable  limitation  of  the  existing  power 
of  the  court  to  control  and  modify,  or  set  aside,  its  judg- 
ments.^ 

'  Nelson  v.  Ghiselin,  17  Mo.  App.  G63;  Fannon  v.  Plummer,  30  Mo. 
App.  25. 

^  The  court  of  appeals  of  Missouri,  in  discussing  the  question,  uses 
this  language:  "The  appellant  now  claims,  as  he  claimed  in  the  court 
below,  that  after  the  lapse  of  four  days  subsequent  to  the  rendition  of 
the  judgment  of  affirmance,  the  trial  court  lost  jurisdiction  to  vacate 
the  judgment,  either  upon  the  defendant's  motion  or  its  own,  and  that 
all  its  subsequent  proceedings  were  illegal ;  while  the  defendant  claims 
that,  although  he  had  no  legal  right  to  have  his  motion  considered,  the 
court  had  the  legal  power  to  consider  it  at  any  time  during  the  term, 
and  to  vacate  any  judgment  rendered  by  it  during  the  term  when  such 
judgment  was  rendered,  either  upon  the  defendant's  suggestion  or  upon 
its  own  motion. 

"We  believe  that  neither  the  plaintiff's  nor  the  defendant's  position 
can  be  sustained  to  the  full  extent  claimed.  Mr.  Freeman,  in  his  work 
on  Judgments,  states  the  proposition  thus:  'The  power  to  vacate  judg- 
ments was  conceded  by  the  common  law  to  all  its  courts.  This  power 
was  exercised  in  a  great  variety  of  circumstances,  and  subject  to  various 
restraints.     The  practice  in  the  different  states  is  in  many  respects  so 


NEW    TRIALS    AND    VACATION    OF    JUDGEMENTS.  679 

There  is  no  good  reason  for  holding  that  a  judgment 
may  not  be  made  final  by  statute  at  an  earlier  time  than 
the  close  of  the  term. 

conflicting,  that  few  rules  can  be  laid  down  universally  applicable.  One 
rule,  however,  is  undoubted ;  that  is,  that  the  power  of  the  court  over 
its  judgments,  during  the  entire  term  at  which  they  are  rendered,  is 
unlimited.'  Freem.  on  Judg.,  sec.  90.  An  examination  of  the  cases- 
relied  upon  by  the  author  in  support  of  this  text  fails  to  support  it. 

"  The  power  of  trial  courts  to  vacate  their  own  judgments  during  the 
term,  we  conceive  is  not,  and  never  has  been,  absolute,  but  even  where 
not  limited  by  statute,  has  always  been  dependent  on  good  cause  exist- 
ing or  shown.  Were  the  rule  otherwise,  the  plaintifl"  in  a  case  like  the 
one  before  us  could  be  deprived  by  the  trial  court  of  all  redress.  He 
could  obtain  a  number  of  successive  affirmances  of  his  judgment  before 
the  justice,  which  might  be  successively  vacated  by  the  circuit  court, 
during  the  term  when  rendered,  and  yet  the  action  of  the  trial  court  in 
thus  vacating  them  would  not  be  subject  to  review  on  appeal.  Where 
the  statute  provides  that  the  court  may,  upon  motion  filed  within  a 
certain  time,  vacate  its  judgment,  the  discretion  of  the  trial  court  in 
thus  vacating  its  judgment  is  not  subject  to  review  on  appeal,  or  in  any 
other  manner.  It  may  therefore  properly  be  said  that  the  power  of  the 
trial  court  in  the  case  last  above  stated  to  vacate  its  judgment  within 
the  term  is  absolute.  Helm  v.  Bassett,  9  Mo.  52;  Keating  v.  Bradford, 
25  Mo.  87.  On  the  other  hand,  the  common  law  power  of  the  trial 
court  to  vacate  its  own  judgment,  during  the  term  when  rendered,  in 
the  absence  of  a  statutory  limitation,  has  always  been  recognized,  sub 
modo,  in  this  state.  William  v.  Circuit  Court,  5  Mo.  248;  Richmond  v. 
Wardlaw,  36  Mo.  313;  Simpson  v.  Blunt,  42  Mo.  544;  State  ex  rel.  v. 
Adams,  Supr.  Court,  Oct.  Term,  1884. 

"  In  view  of  the  statutory  and  decided  law  and  the  prevailing  practice 
of  the  courts  on  this  subject,  we  are  inclined  to  state  the  rule  thus : 
Where  the  trial  court,  during  the  term  when  a  judgment  is  rendered, 
vacates  it,  its  action  in  so  doing  must,  in  the  absence  of  a  showing  to 
the  contrary,  be  considered  warranted  by  the  exercise  of  its  general 
power.  Its  action,  however,  is  subject  to  review  by  the  appellate  court 
by  mandamus  or  appeal,  as  the  case  may  be.  The  party  seeking  such 
review  must  affirmatively  show  that  the  action  of  the  trial  court  in  thus 
vacating  its  judgment  was  either  illegal,  because  in  contravention  of 
some  statute,  or  else  that  it  should  be  set  aside  because  oppressively  ex- 
ercised. If  he  fails  to  show  one  or  the  other,  the  action  of  the  court 
must  stand."     Nelson  v.  Ghiselin,  17  Mo.  App.  664. 

The  language  used  is  not  very  clear,  nor  is  the  rule  laid  down  easily 
understood.  The  case  seems  to  take  a  kind  of  half-way  ground  between 
the  doctrine  that  the  power  of  the  courts  over  their  judgments  is  abso- 
lute, until  the  close  of  the  term,  and  what  it  is  believed  is  the  better 
rule,  that  the  power  is  subject  to  reasonable  statutory  limitation  as  to 
the  lime  of  its  exercise,  even  during  the  term. 


680        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

An  appeal  does  not  deprive  a  court  of  the  power  over 
its  judgment  during  the  term." 

Statutes  of  the  kind  under  consideration  are  limitations 
not  only  upon  the  time  when  such  applications  shall  be 
made,  but  upon  the  grounds  upon  which  judgments  may 
be  set  aside  or  new  trials  granted.  Therefore,  a  court  has 
no  power  to  set  aside  its  own  judgments  after  the  term 
except  upon  the  grounds  mentioned  in  the  statute.^  It 
has  no  more  control  over  its  judgments  after  the  term,  in- 
dependently of  some  statute  giving  it  such  power,  than 
any  other  court  has.  The  judgment  may  be  set  aside  in 
such  court  upon  sufficient  grounds,  the  same  as  it  may  be 
set  aside  in  any  other  court  of  competent  jurisdiction,  but 
not  otherwise.  In  other  words,  it  has  no  special  control 
or  power  over  the  judgment  merely  because  it  is  its  own 
judgment.  There  are  exceptions  to  this  rule,  however, 
growing  out  of  the  nature  of  certain  classes  of  judgments 
over  which  a  court  has  a  continuing  control  with  power 
to  modify  or  change  them  without  limitation  as  to  time; 
for  example,  judgments  for  the  custody  of  children,  guar- 
dianship of  minors  and  lunatics,  for  alimony,  and  the  like. 
In  such  cases,  the  court  may,  without  statutory  authority, 
modify  or  set  aside  its  judgments  after  the  term.^ 

The  limitation  of  a  statute  of  this  kind  is  held  not  to 
apply  to  a  case  where  a  return  of  service  is  made  as  being 
upon  an  agent  who  was  not  such,  and  judgment  taken  by 
default  upon  such  return  upon  the  ground  that  in  such 
case  the  court  has  been  deceived  by  a  false  return  and  the 
defendant  is  without  fault  and  that  the  objection  can  be 
made  by  motion  in  the  court  rendering  the  judgment.^  But 
this  is  opposed  to  the  well-settled  rule  that  only  such  judg- 

1  Blackburn  v.  Knight,  16  S.  W.  Rep.  1075. 

"McBrien  V.  Riley,  57  N.  W.  Rep.  385;  Kohn  v.  Haas,  12  Sou.  Rep. 
577. 

3  Dutcher  v.  Hill,  29  Mo.  271 ;  77  Am.  Dec.  572 ;  In  re  Maryins,  85 
Mo.  615. 

*  Norton  v.  Atchison,  etc.,  R.  R.  Co.,  97  Cal.  388;  30  Pac.  Rep.  585- 
32  Pac.  Rep.  452. 


I 


II 


NEW    TRIALS    AND    VACATION    OF    JUDGMENTS.  681 

ments  as  are  void  on  their  face  can  be  set  aside  on  mere 
motion.^  It  involves  the  determination  of  the  question 
of  fact  upon  evidence  outside  of  the  record  and  against 
the  return  of  the  officer,  whether  the  person  served  was 
the  agent  of  the  corporation  and  properly  served,  which 
can  not,  as  we  shall  see  further  on  in  this  section,  be 
done  upon  a  motion  to  vacate  the  judgment,  whether- 
the  return  of  service  as  upon  the  agent  be  treated  as  a 
fraud  or  not.  The  question  could  properly  be  presented 
upon  a  motion  to  set  the  default  aside,  or  by  action,  but 
not  otherwise.^ 

These  limitations  apply  only  to  erroneous  judgments, 
and  not  to  such  as  are  void.  Such,  though  judgments  in 
form,  are  not  judgments  at  all,  and  this  may  be  shown  and 
the  party  relieved  from  them  at  any  time  or  in  any  form, 
in  the  court  in  which  the  judgment  was  rendered  or  in 
any  other  court.' 

But  this  is  not  so,  necessarily,  where  the  invalidity  of 
the  judgment  is  not  apparent  upon  the  face  of  the  record, 
but  can  be  made  to  appear  so  only  by  extraneous  evidence. 
In  such  cases,  although  the  courts  have  the  power,  inde- 
pendent of  statutes,  to  give  relief,  the  power  does  not  rest 
upon  the  authority  of  a  court  to  control  its  own  judg- 
ments which  ceases  with  the  term,  and  the  legislature  has 
the  undoubted  right  to  provide  that  in  order  to  obtain  re- 
lief the  party  shall  apply  therefor  w^ithin  a  limited  time, 

1  Jacks  V.  Baldez,  97  Cal.  91  ;  31  Pac.  Rep.  899 ;  Kohn  v.  Haas,  12  Sou. 
Eep.  577 ;  Clarke  Cove  Guano  Co.  v.  Steed,  17  S.  E.  Rep.  967. 

^  Syme  v.  Trice,  96  N.  Car.  243 ;  1  S.  E.  Rep.  480. 

'  Ante,  sees.  22,  23,  25  ;  1  Black  on  Judg.,  sec.  307  ;  Wallace  v.  Center, 
67  Cal.  133;  7  Pac.  Rep.  441;  People  v.  Harrison,  84  Cal.  607;  24  Pac. 
Rep.  311;  Kreiss  r.  Hotaling,  96  Cal.  617;  31  Pac.  Rep.  740;  Jacks  v. 
Baldez,  97  Cal.  91 ;  31  Pac.  Rep.  899;  People  v.  Greene,  74  Cal.  400;  16 
Pac.  Rep.  197;  Wilson  v.  Hawthorn,  14  Colo.  530;  24  Pac.  Rep.  548; 
Remer  v.  Mackay,  35  Fed.  Rep.  86 :  Underbills  Est.,  9  N.  Y.  Supl.  457 ; 
United  States  r.  Wallace,  46  Fed.  Rep.  569;  Pantall  r.  Dickey,  123  Pa. 
St.  431;  16  Atl.  Rep.  789;  Bannon  r.  Rohmeiser,  9  S.  W.  Rep.  293; 
Thomas  v.  American,  etc.,  Co.,  47  Fed.  Rep.  550. 


682      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

and  that  the  application  shall  be  made  in  a  particular 
manner.^ 

The  right  to  a  new  trial  must,  with  the  exceptions  above 
pointed  out,  be  confined  to  the  grounds  specified  in  the 
statute,  and  such  new  trial  can  only  be  granted  upon  the 
grounds  so  specified  and  made  the  basis  of  the  motion. 
Not  only  is  the  statute  a  limitation  upon  the  jurisdiction  of 
the  court,  but  the  motion  or  notice  of  motion  stating  the 
grounds  for  relief  must  confine  the  court  to  the  grounds 
stated.  And,  independently  of  any  limitation  imposed  by 
statute,  a  party  may  lose  his  right  to  the  interposition  of 
a  court  of  equity  for  relief  by  delay  in  making  his  appli- 
cation.^ 

It  is  frequently  said  that  courts  of  equity  will  not  grant 
new  trials  or  vacate  judgments,  but  will  only  act  upon  the 
parties  and  prevent  them  from  receiving  the  benefits  of 
their  judgments  and  thereby  compel  them  to  consent  to  a 
new  trial.^ 

This  is  true  as  to  what  courts  of  equity  will  not  do  as  a 
rule.  But  as  a  statement  of  what  courts  of  equity  may 
properly  do,  or  of  what  they  have  jurisdiction  to  do,  it  is 
not  true.  Courts  of  equity  have  power  to  order  new  trials 
in  courts  of  law,*  and  to  vacate  the  judgments  of  such 
courts  on  grounds  falling  within  equitable  cognizance,  as, 
for  example,  in  cases  of  fraud,  mistake,  and  like  causes, 
and  in  case  of  newly  discovered  evidence.^  And  that, 
too,  although  the  judgment  may  have  been  rendered  by 
a  court  of  superior  jurisdiction  to  the  court  of  chancery 

'  People  V.  Green,  74  Cal.  400;  16  Pac.  Rep.  197;  People  v.  Harrison, 
84  Cal.  607  ;  24  Pac.  Rep.  311. 

2  Earle  v.  Earle,  91  Ind.  27. 

^  Freeman  on  Judg.,  sec.  484a;  1  Black  on  Judg.,  sec.  357;  Martin  r. 
Parsons,  49  Cal.  94. 

*  Freeman  on  Judg.,  sec.  484a;  Horn  v.  Queen,  4  Neb.  108-;  Brown  r. 
Luehrs,  95  111.  195;  Deputy  r.  Tobias,  1  Blkf.  (Ind.)  311;  12  Am.  Dec. 
243;  Story  Eq.  PL,  sec.  426;  District  Townships.  White, 42 la. 608;  Bond 
r.  Epley,  48  la.  600. 

»  Freeman  on  Judg.,  sees.  484a,  485,  486, 488-494 ;  Hornt-.  Queen,  4  Neb. 
108 ;  Dringer  v.  Receiver  of  Erie  Ry.  Co.,  42  N.  J.  Eq.  573 ;  8  Atl.  Rep 
811;  Buckelew  v.  Chipman,  5  Cal.  399;  Nealis  v.  Dicks,  72  Ind.  374 
Oliver  v.  Pray,  4  Ohio,  175  ;  19  Am.  Dec.  595  ;  Brown  v.  Luehrs,  95  III. 


J^ 


NEW  TRIALS  AND  VACATION  OF  JUDGMENTS.      683 

before  whom  the  proceeding  to  vacate  and  annul  it  is 
brought.^  But  it  is  a  power  that  is  not  frequently- 
used  in  that  direct  way.  It  is  held  under  the  codes,  how- 
ever, that  one  court  of  concurrent  jurisdiction  has  no 
power  to  vacate  or  set  aside  the  judgments  of  another 
court.* 

So  far  as  the  rule  applies  to  the  vacation  or  opening  up  of  - 
judgments  by  mere  motion,  this  is  undoubtedly  true.  But 
it  is  not  the  correct  rule  when  applied  to  an  independent 
action  to  vacate  or  set  aside  a  judgment  such  as  might 
have  been  brought  in  a  court  of  equity,  as  such,  as  shown 
above,  against  the  judgment  of  any  court,  high  or  low. 
There  is  nothing  in  the  consolidation  of  common  law  and 
equity  jurisdiction  in  the  same  courts  which  can  reasonably 
be  regarded  as  changing  the  rule.  Therefore  there  is  no 
apparent  reason  for  holding  that  an  independent  action  to 
vacate  a  final  judgment  can  not  be  maintained  in  any  court 
of  competent  jurisdiction  irrespective  of  the  fact  of  the 
judgment  having  been  rendered  by  another  court  of  con- 
current jurisdiction,  where  there  is  no  statutory  provision 
against  it.  But  this  can  not  be  so  where  the  action 
is  still  pending  in  the  court  first  taking  jurisdiction. 
So  long  as  the  action  is  pending  the  jurisdiction  is  ex- 
clusive.^ And  if  the  party  has  an  adequate  remedy  by 
motion  in  the  court  in  which  the  judgment  was  ren- 
dered that  is  a  sufiicient  reason  for  a  refusal  to  entertain 
an  action,  in  the  nature  of  a  suit  in  equity,  to  vacate  the 
judgment.*  But  this  limitation  of  the  right  or  disposition 
of  a  court  to  act  was  equally  applicable  to  courts  of  chan- 
cery and  does  not  rest  upon  a  want  of  jurisdiction  of  one 
court  to  interfere  with  the  judgments  of  another  court  of 

195;  Dady  v.  Brown,  76  la.  528;  41  N.  W.  Rep.  209;  Herbert  v.  Herbert, 
47  N.  J.  Eq.  11;  20  Atl.  Rep.  290  r  Tomlinsou  v.  Litze,  82  la.  32;  47  N. 
W.  Rep.  1015 ;  Doughty  v.  Doughty,  27  N.  J.  Eq.  315 ;  Link  v.  Link,  48 
Mo.  345. 

1  Dringer  v.  Receiver  of  Erie  Ry.  Co.,  42  X.  J.  Eq.  573;  8  Atl.  Rep. 
811. 

'  Cardinal  r.  Eau  Claire  Lumber  Co.,  75  Wis.  404 ;  44  X.  W.  Rep.  761. 

^Ante,  sees.  17,  79,  p.  608. 

*  Coon  V.  Seymour,  71  Wis.  340 ;  37  X.  W.  Rep.  243. 


C84      COMxMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

concurrent  jurisdiction  by  way  of  a  proceeding  of  this 
kind.^ 

The  federal  courts  have  jurisdiction  to  set  aside  the 
judgments  of  state  courts  for  fraud  where  the  amount  in- 
volved, and  the  citizenship  of  the  parties,  vests  them  with 
jurisdiction  in  the  particular  case.^  The  power  of  a  court 
of  equity  extends  also  to  cases  where  judgment  has  been 
rendered  against  a  party  without  notice.^ 

It  is  a  power  that  is  exerted  less  frequently  at  the  pres- 
ent day  than  it  was  formerly  because  the  common  law 
courts  are,  as  a  rule,  given  full  power,  under  statutory  pro- 
visions, to  grant  such  relief  as  adequately  as  it  can  be  ad- 
ministered by  courts  of  chancery/  But  the  jurisdiction 
may  still  be  exercised  in  a  proper  case  where,  from  no 
fault  of  the  complaining  party,  the  common  law  court  has 
no  power  to  grant  the  relief.^ 

It  is  generally  held  that  statutory  or  code  provisions  au- 
thorizing the  review  or  vacation  of  judgments,  and  speci- 
fying the  grounds  upon  which  such  relief  may  be  had,  do 
not  take  away  from  the  courts  the  general  equity  juris- 
diction existing  in  them  to  vacate  and  annul  such  judg- 
ments.^ 

'  But  see  on  this  subject,  State  v.  King,  43  La.  Ann.  826 ;  9  Sou.  Rep. 
640. 

*  Young  V.  Sigler,  48  Fed.  Rep.  182. 

3  Brown  v.  Goble,  97  Ind.  86;  Remer  v.  Mackay,  35  Fed.  Rep.  86. 

*  Horn  V.  Queen,  4  Neb.  108;  Powers  v.  Butler,  4  N.  J.  Eq.  465;  Hass 
V.  Billings,  42  Minn.  63 ;  43  N.  W.  Rep.  797. 

*  Horn  V.  Queen,  4  Neb.  108 ;  Brown  v.  Goble,  97  Ind.  86. 
«  Nealis  v.  Dicks,  72  Ind.  374 ;  Earle  v.  Earle,  91  Ind.  27. 

"  That  our  courts  possess  ample  equity  powers  is  a  proposition  so 
plainly  correct  that  its  bare  statement  excludes  debate.  Nor  does  the 
statute  concerning  the  review  of  judgments  restrict  the  power  of  the 
courts  to  set  aside  judgments  to  the  two  grounds  there  specified.  Courts 
must,  and  do,  possess  other  powers  than  those  expresslj'  conferred  by 
statute.  The  code  does  not  profess  to  strip  the  courts  of  the  powers  in- 
cident to  courts  of  equity.  The  framers  of  the  code  did  not  intend  to 
take  from  our  courts  rights  and  authority  long  asserted  and  exercised. 
Courts  of  equity  possess  powers  far  more  important  and  infinitely 
more  essential  to  the  complete  administration  of  justice  than  any  ever 
created  or  conferred  by  legislative  enactment.  The  powers  of  courts  of 
equity  were  created  and  defined  by  men  of  wisdom,  whose  object  was 


NEW    TRIALS    AND    VACATION    OF    JUDGMENTS.  685 

The  power,  in  whatever  way  it  may  be  exercised,  does 
not  extend  to  the  mere  correction  of  errors  or  irregulari- 
ties. Relief  for  such  causes  must  be  sought  by  appropriate 
proceedings  in  the  court  in  which  the  judgment  was  ren- 
dered or  by  appeah^ 

Courts    of    chancery,   in  granting    such    relief,  proceed 
upon  purely  equitable  grounds.     Therefore  they  will  not- 
set  aside  a  judgment  because  it  is  void,  unless  it  also  ap- 
pears that  it  is  inequitable.^ 

The  fraud  which  will  authorize  the  vacation  of  a  judg- 
ment must  be  a  fraud  extrinsic,  or  collateral,  to  the  ques- 
tions examined  and  determined  in  the  action,  and  by  which 
the  party  was  prevented  from  properly  presenting  his  case.^ 

to  form  a  body  of  primary  rights  and  equitable  remedies  that  would 
enable  the  courts  to  enforce  the  principles  of  natural  justice.  It  will 
not  do  to  hold  that  courts  possess  no  power  to  annul  judgments  except 
upon  the  grounds  and  in  the  mode  expressly  specified  and  prescribed 
by  statute.  If  courts  were  restricted  to  the  exercise  of  mere  statutory 
powers,  they  would  make  but  a  lame  and  halting  progress  in  the  admin- 
istration of  justice.  The  statute  concerning  the  review  of  judgments 
does  not  mean  that  judgments  shall  only  be  vacated  upon  the  grounds 
therein  designated,  or  only  in  the  mode  there  prescribed,  to  the  exclu- 
sion of  all  other  causes  and  all  other  modes.  Neither  the  letter  nor  the 
spirit  of  the  act  warrants  the  conclusion  that  the  legislature  intended 
to  so  narrow  the  power  of  courts  of  general  jurisdiction  to  relieve 
against  judgments,  as  to  limit  and  confine  them  to  the  causes  and  modes 
expressly  prescribed  by  statute.  Where  the  statute  does  prescribe  the 
causes  for  which  a  judgment  may  be  set  aside,  and  does  provide  a  mode 
of  procedure,  then,  of  course,  the  statute  controls,  and  is  to  be  followed 
and  obeyed."     Nealis  v.  Dicks,  72  Ind.  374,  376. 

'  Ante,  sec.  79;  Freeman  on  Judg.,  sees.  487,  488,  489;  In  re  Grifiith, 
84  Cal.  107;  23  Pac.  Rep.  528;  24  Pac.  Rep.  381;  Putnam  v.  Webb,  15 
Ore.  440;  15  Pac.  Rep.  711;  Thomas  v.  West,  59  Wis.  103;  17  N.  W. 
Rep.  684 ;  Boulton  v.  Admistrators  of  Scott,  3  N.  J.  Eq.  231 ;  Reeves  v. 
Cooper,  12  N.  J.  Eq.  223;  Vaughn  v.  Johnson,  9  N.  J.  Eq.  173;  Tomp- 
kins V.  Tompkius,  11  X.  J.  Eq.  512 ;  Stratton  v.  Allen,  16  N.  J.  Eq.  229. 

2  Thomas  v.  West,  59  Wis.  103 ;  17  N.  W.  Rep.  684. 

'  United  States  v.  Throckmorton,  98  U.  S.  61 ;  Pico  v.  Cohn,  91  Cal. 
129 ;  25  Pac.  Rep.  970;  In  re  GriflJith,  84  Cal.  107 ;  23  Pac.  Rep.  528  ;  24 
Pac.  Rep.  381 ;  Richardson  v.  Stowe,  102  Mo.  33 ;  14  S.  AV.  Rep.  810 ;  Ir- 
vine V.  Leyh,  102  Mo.  200;  14  S.  W.  Rep.  715;  Stratton  v.  Allen,  16  N. 
.1.  Eq.  229. 

"  There  are  no  maxims  of  the  law  more  firmly  established,  or  of 
more  value  in  the  administration  of  justice,  than  the  two  which  are 


686      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

Therefore  the  fact  that  the  judgment  was  procured  hy      I 
perjury  on  behalf  of,  or  by,  the  prevaiUng  party,  or  by 

designed  to  prevent  repeated  litigation  between  the  same  parties  in  re-  % 
gard  to  the  same  subject  of  controversy,  namely,  interest  rei  publicae,  ut  * 
sit  finis  litium,  and  7iemo  debit  bis  vexari  pro  una  et  eadam  causa. 

"  If  the  court  has  been  mistaken  in  the  law,  there  is  a  remedy  by 
wTit  of  error.  If  the  jury  has  been  mistaken  in  the  facts,  the  remedy 
is  by  motion  for  new  trial.  If  there  has  been  evidence  discovered  since 
the  trial,  a  motion  for  a  new  trial  will  give  appropriate  relief.  But  all 
these  are  parts  of  the  same  proceeding,  relief  is  given  in  the  same  suit» 
and  the  party  is  not  vexed  by  another  suit  for  the  same  matter.  So  irt 
a  suit  in  chancery,  on  proper  showing  a  rehearing  is  granted.  If  the 
injury  complained  of  is  an  erroneous  decision,  an  appeal  to  a  higher 
court  gives  opportunity  to  correct  the  error.  If  new  evidence  is  dis- 
covered after  the  decree  has  become  final,  a  bill  of  review  on  that  ground 
may  be  filed  within  the  rules  prescribed  by  law  on  that  subject.  Here, 
again,  these  proceedings  are  all  part  of  the  same  suit,  and  the  rule 
framed  for  the  repose  of  society  is  not  violated. 

"But  there  is  an  admitted  exception  to  this  general  rule  in  cases 
where  by  reason  of  something  done  by  the  successful  party  to  a  suit, 
there  was  in  fact  no  adversary  trial  or  decision  of  the  issue  in  the  case. 
Where  the  unsuccessful  pai-ty  has  been  prevented  from  exhibiting  fully 
his  case,  by  fraud  or  deception  practiced  on  him  by  his  opponent,  as  by 
keeping  him  away  from  court,  a  false  promise  of  a  compromise;  or 
where  the  defendant  never  had  knowledge  of  the  suit,  being  kept  in 
ignorance  by  the  acts  of  the  plaintiff;  or  where  an  attorney  fraudulently 
or  without  authority  assumes  to  represent  a  party  and  connives  at  his 
defeat;  or  where  the  attorney  regularly  employed  corruptly  sells  out 
his  client's  interest  to  the  other  side;  these  and  similar  cases  which 
show  that  there  has  never  been  a  real  contest  in  the  trial  or  hearing  of 
the  case,  are  reasons  for  which  a  new  suit  may  be  sustained  to  set  aside 
and  annul  the  former  judgment  or  decree,  and  open  the  case  for  a 
new  and  a  fair  hearing.  See  Wells  Res  Adjudicata,  sec.  499;  Pearce  v. 
Olney,  20  Conn.  544 ;  Wierich  v.  De  Zoya,  7  111.  385 ;  Kent  v.  Ricards, 
3  Md.  Ch.  392;  Smith  v.  Lowry,  1  Johns.  (N.  Y.)  Ch.  320;  De  Louis  et 
al.  V.  Meeks  et  al.,  2  Iowa,  55. 

"  In  all  these  cases,  and  many  others  which  have  been  examined,  re- 
lief has  been  granted  on  the  ground  that  by  some  fraud  practiced  di- 
rectly upon  the  party  seeking  relief  against  the  judgment  or  decree, 
that  party  has  been  prevented  from  presenting  all  of  his  case  to  the 
court. 

"  On  the  other  hand,  the  doctrine  is  equally  well  settled  that  the 
court  will  not  set  aside  a  judgment  because  it  was  founded  on  a  fraudu- 
lent instrument  or  perjured  evidence,  or  for  any  matter  which  was  actu- 
ally presented  and  considered  in  the  judgment  assailed."  United  States 
V.  Throckmorton,  98  U.  S.  61,  G5. 

"  In  all  such  instances  the  unsuccessful  party  is  really  prevented  by 


NEW    TRIALS    AND    VACATION    OF    JUDGMENTS.  687 

false  or  forged  documentary  evidence,  is  not  ground  for 
such  relief,  if  the  party  has  had  an  opportunity  to  show 
that  the  testimony  was  false  or  the  instrument  was  forged, 
for  the  reason  that  the  truth  or  falsity  of  the  evidence  was 
passed  upon  by  the  court  upon  the  trial  and  the  question 
can  not  be  retried  by  a  motion  or  action  to  vacate  the 
judgment.^ 

A  diiFerent  rule  has  been  declared,  however,  in  some 
of  the  cases  f  and  in  some  of  the  states  statutes  have  been 
enacted  authorizing  the  vacation  of  judgments  by  an  ac- 
tion brought  for  that  purpose  on  the  ground  that  the  same 
have  been  procured  by  perjury  or  subornation  of  perjury 
as  well  as  for  other  fraudulent  acts.^  But  such  statutes 
are  given  a  strict  construction,  on  the  ground  that  they 
are  in  derogation  of  the  common  law,  and  for  the  further 
reason  urged  against  applying  such  relief,  independently 

the  fraudulent  contrivance  of  his  adversary  from  having  a  trial ;  but 
when  he  has  a  trial  he  must  be  prepared  to  meet  and  expose  perjury- 
then  and  there.  He  knows  that  a  false  claim  or  defense  can  be  sup- 
ported in  no  other  way;  that  the  very  object  of  the  trial  is,  if  pos- 
sible, to  ascertain  the  truth  from  the  conflict  of  the  evidence,  and  that 
necessarily  the  truth  or  falsity  of  the  testimony  must  be  determined  in 
deciding  the  issue.  The  trial  is  his  opportunity  for  making  the  truth 
appear.  If,  unfortunately,  he  fails,  being  overborne  by  perjured  testi- 
mony, and  if  he  likewise  fails  to  show  the  injustice  that  has  been  done 
him,  on  motion  for  a  new  trial,  and  the  judgment  is  affirmed  on  ap- 
peal, he  is  without  remedy.  The  wrong,  in  such  case,  is,  of  course,  a 
most  grievous  one,  and  no  doubt  the  legislature  and  the  courts  would 
be  glad  to  redress  it  if  a  rule  could  be  devised  that  would  remedy  the 
evil  without  producing  mischiefs  far  worse  than  the  evil  to  be  remedied. 
Endless  litigation,  in  which  nothing  was  ever  finally  determined,  would 
be  worse  than  occasional  miscarriages  of  justice  ;  and  so  the  rule  is  that 
a  final  judgment  can  not  be  annulled  merely  because  it  can  be  shown 
to  have  been  based  on  perjured  testimony ;  for,  if  this  could  be  done 
once,  it  could  be  done  again  and  again,  ad  infinitum."  Pico  v.  Cohn,  91 
Cal.  129,  134;  25  Pac.  Rep.  970.  See  on  this  point,  Doughty  r.  Doughty, 
27  N.  J.  Eq.  315,  in  which  a  broader  power  is  apparently  maintained  for 
courts  of  chancery  under  such  circumstances. 

'  Pico  V.  Cohn,  91  Cal.  129;  25  Pac.  Rep.  970;  Dringer  v.  Receiver  of 
Erie  Ry.  Co.,  42  N.  J.  Eq.  573;  8  Atl.  Rep.  811 ;  Cotzhausen  v.  Kerting, 
29  Fed.  Rep.  821. 

''  Laithe  v.  McDonald,  7  Kan.  2.54  ;  12  Kan.  340. 

'  Hass  V.  Billings,  42  Minn.  63 ;  43  N.  W.  Rep.  797. 


COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

of  statutory  provisions  on  the  subject,  viz.,  the  tendency 
to  prolong  litigation.* 

As  in  other  cases  a  court  of  equity  will  not  interfere  to 
vacate  a  judgment  where  the  party  has  an  adequate  rem- 
edy in  the  court  in  which  the  judgment  was  rendered,  by 
motion,  or  otherwise.^ 

Whatever  proceeding  may  be  resorted  to  to  vacate  a  judg- 
ment, it  can  not  be  used  to  retry  the  questions  of  law  or 
fact  submitted  to  the  court  and  determined  in  the  action.^ 

The  appropriate  proceedings  to  set  aside  a  decree  in 
equity  is  by  way  of  a  bill  of  review.*  This  remedy  has  been 
abolished  in  some  of  the  states  ;  but  where  the  remedy  in 
that  form  is  taken  away  an  original  suit  for  the  purpose, 
and  upon  like  grounds,  may  be  prosecuted.®  Such  a  pro- 
ceeding is  provided  for  by  statute  in  some  of  the  states,® 
and  the  right  to  annul  a  void  judgment,  under  the  codes, 
by  an  action  brought  for  that  purpose,  is  maintained.^ 

A  new  trial  may  be  granted  as  to  a  part  of  the  issues  in 
a  cause,^  but  this  must  not  be  understood  as  allowing  a 
new  trial  upon  one  or  any  number  of  findings  oi  fact  not 
constituting  an  issue  upon  a  separate  and  distinct  cause 
of  action  or  defense.^ 

*  Stewart  v.  Duncan,  40  Minn.  410 ;  42  N.  W.  Rep.  89  ;  Hass  v.  Billings, 
42  Minn.  63 ;  43  N.  W.  Rep.  797. 

*  Coon  V.  Seymour,  71  Wis.  340 ;  37  N.  W.  Rep.  243. 

»  Richardson  v.  Stowe,  102  Mo.  33 ;  14  S.  W.  Rep.'  810. 

*  Freeman  on  Judg.,  sec.  484a;  1  Black  on  Judg.,  sec.  301 ;  Sheffield  v. 
Mullen,  28  Minn.  251 ;  9  N.  W.  Rep.  756. 

*  Crews  V.  Richards,  14  Or.  442;  13  Pac.  Rep.  67. 

®  Mulvaney  v.  Lovejoy,  37  Kan.  305;  15  Pac.  Rep.  181 ;  Roush  v.  Ley- 
ton,  51  Ind.  106. 

'  Willman  v.  Wiilman,  57  Ind.  500. 

»  San  Diego  Land  &  Town  Co.  v.  Neale,  78  Cal.  63  ;  20  Pac.  Rep.  372  ; 
Lake  v.  Lake,  18  Nev.  361 ;  4  Pac.  Rep.  711. 

^  The  case  of  Land  &  Town  Co.  v.  Neale,  supra,  carries  the  rule  that  a 
new  trial  may  be  granted  as  to  a  part  of  the  issues  too  far.  The  case  was 
one  for  the  condemnation  of  land  which  involved  two  questions,  viz., 
whether  the  land  sought  to  be  condemned  was  necessary  for  a  public 
use,  and  if  so  what  was  its  value.  The  plaintiff  having  obtained  a  judg- 
ment as  to  the  first  of  these  questions  and  not  being  satisfied  as  to  the 
amount  of  damages  allowed  moved  for  a  new  trial,  not  as  to  the  whole 
case,  but  only  as  to  the  amount  of  damages.    These  were  not  two  sepa- 


i 


NEW    TRIALS   AND    VACATION    OF   JUDGMENTS.  689 

The  mode  usually  resorted  to  at  the  present  day  for  re- 
lief from  a  judgment,  other  than  by  a  motion  for  a  new 
trial,  is  by  amotion,  upon  notice,  in  the  court  in  which  judg- 
ment was  rendered.^ 

This  was  a  common-law  remedy,  and  was  very  rarely 
allowed  after  the  term  at  which  the  judgment  was  ren- 
dered.^ 

If  the  attack  upon  the  judgment  is  upon  the  ground  of 
irregularity,  or  that  it  is  voidable  only,  or  where  there  is 
a  want  of  jurisdiction  of  the  person  not  appearing  on  the 
face  of  the  record,  it  is  held  in  some  of  the  states  that  re- 
lief can  not  be  obtained  by  action  in  another  court  ;^  but 
where  the  ground  is  want  of  service  of  summons  on  the 
defendant  it  is  held  that  the  writ  of  recordari  which  is 
preserved  by  the  codes  of  some  of  the  states  may  be  re- 
sorted to.* 

It  is  further  held  that  if  the  judgment  is  sought  to  be 
vacated  on  the  ground  of  fraud  it  can  not  be  done  by  mo- 
tion in  the  cause,  but  only  by  an  independent  action.^ 

The  same  rule  should  be  enforced  in  every  proceeding 
for  the  vacation   of  a  judgment  involving  the  investiga- 

rate  and  distinct  issues,  in  the  proper  sense  of  the  term,  but  were  each 
a  part  of  the  same  cause  of  action,  necessary  to  be  determined  under 
one  paragraph  or  count  of  the  complaint.  Two  facts  to  be  determined 
under  one  issue  rather  than  two  separate  and  distinct  issues.  The  new 
trial  in  this  case  was  allowed  solely  to  determine  the  amount  of  damages 
the  defendant  should  recover  leaving  the  judgment  condemning  the 
land,  the  right  to  which  was  really  the  only  issue  in  the  cause,  to  stand 
in  favor  of  the  plaintiff. 

1  In  re  Pedrorena,  22  Pac.  Rep.  71 ;  Sheffield  v.  Mullen,  28  Minn.  251 ; 
9  N.  W.  Rep.  756 ;  Syme  v.  Trice,  96  N.  Car.  243 ;  1  S.  E.  Rep.  480  ;  Beach 
V.  Beach,  6  Dak.  371;  43  N.  W.  Rep.  701 ;  First  Nat'l  Bank  v.  Grimes,  45 
Kan.  510;  26  Pac.  Rep.  56  ;  Gallop  v.  Allen,  113  N.  Car.  24;  18  S.  E.  Rep. 
55 ;  12  Am.  &  Eng.  Enc.  of  Law,  132. 

'  Kemp  V.  Cook,  18  Md.  130;  79  Am.  Dec.  681. 

'  Whitehurst  v.  Merchants,  etc.,  Transp.  Co.,  109  N.  Car.  342  ;  13  8.  E. 
Rep.  937  ;  Gallop  v.  Allen,  113  N.  Car.  24;  18  S.  E.  Rep.  55. 

*  King  V.  Wilmington  &  W.  R.  Co.,  112  N.  Car.  318 ;  16  S.  E.  Rep.  929 ; 
Gallop  V.  Allen,  113  N.  Car.  24;  18  S.  E.  Rep.  55. 

*  Estes  V.  Jackson,  111  N.  Car.  145 ;  16  S.  E.  Rep.  7 ;  Sharp  v.  Danville, 
etc.,  R.  Co.,  106  N.  Car.  308;  11  S.  E.  Rep.  530. 

44 


690       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

tion  and  decision  upon  questions  of  fact,  not  appearing 
upon  the  face  of  the  record.  So  it  is  held  under  some  of 
the  codes  that  the  remedy  by  motion  can  only  be  resorted 
to  where  the  invalidity  of  the  judgment  is  apparent  on 
the  face  of  the  record.^ 

The  remedy  is  not  one  for  the  correction  of  mere  er- 
rors, after  the  close  of  the  term.  This  can  only  be  done 
by  motion  for  a  new  trial,  in  the  court  in  which  the  judg- 
ment was  rendered,  or  by  appeal  or  writ  of  error.^ 

The  writ  of  error  coram  nobis  was  a  common-law  writ 
for  the  correction  of  mistakes  not  put  in  issue  or  passed 
upon,  or  where  there  was  error  in  the  process  through  the 
fault  of  the  clerk.^  But  the  writ  has  been  superseded  al- 
most entirely  in  modern  practice  by  motion  to  be  made 
to  the  court  rendering  the  judgment,  or  by  action.* 

The  common-law  writ  of  recordari,  which  was  used  as  a 
substitute  for  an  appeal  lost  without  fault  of  the  party,  or 
as  a  writ  of  false  judgment  when  the  court  was  without 
jurisdiction,  is  practically  unknown  and  wholly  out  of  use 
in  most  of  the  states.  The  remedy  by  motion  is  held  to 
be  a  direct  attack  upon  the  judgment.  But  in  some  of 
the  states  it  is  held  that  the  remedy  by  motion,  after  a 
final  determination  of  the  action,  must  be  confined  to  ir- 
regularities, and  that  where  the  judgment  is  attacked  for 
fraud  it  must  be  by  a  new  action.^ 

This,  of  course,  is  subject  to  the  rule  that  judgments 
void  on  their  face  may  be  vacated  on  motion  under  most 
statutes;  and  where  the  question  is  one  of  jurisdiction  of 
the  person  involving  the  question  of  notice,  an  independ- 
ent  action  by  complaint  is  an  appropriate  mode  of  bring- 
ing the  same  before  the  court.^ 

An  order  vacating  a  judgment  is  not  generally  review- 


I 


'  Jacks  V.  Baldez,  97  Cal.  91 ;  31  Pac.  Rep.  899;  Kohn  v.  Haas,  12  Sou 
Rep.  577;  Clarke  Cove  Guano  Co.  v.  Steed,  17  S.  E.  Rep.  967. 

2  Salter  v.  Hilgan,  40  Wis.  363 ;  Landon  v.  Burke,  33  Wis.  452.  Ml 

3  Post,  sec.  85 ;  Bronson  v.  Schultz,  104  U.  S.  410.  fj 
*  Bronson  v.  Schulten,  104  U.  S.  410. 
5  Syme  v.  Trice,  96  N.  Car.  243 ;  1  S.  E.  Rep.  480. 
«  Scudder  v.  Jones,  32  N,  E.  Eep.  221. 


NEW    TRIALS    AND    VACATION    OF    JUDGMENTS.  691 

able  by  the  court  making  the  order ; '  but  this  must  be 
subject  to  the  right  of  a  court  to  set  aside  or  vacate  its 
orders  during  the  term. 

Motions  for  new  trials  must  be  made  to  the  court  before 
which   the  action  was   tried,^  and  a  motion,  whether  for  a 
new  trial  or  for  a  vacation  of  a  judgment,  must  be  made 
*in  the  county  or  district  in  which  the  judgment  was  ren-. 
dered.' 

So  an  action  brought  to  annul  or  enjoin  the  enforce- 
ment of  a  judgment  is  usually  required  to  be  brought  in 
the  county  or  district  where  the  judgment  was  rendered.'' 

In  the  federal  courts,  it  is  held  that  a  motion  for  a  new 
trial  is  addressed  to  the  discretion  of  the  court,  and  that 
its  decision  thereon  is  not  the  proper  subject  of  a  bill  of 
exceptions,  or  subject  to  re-examination  in  a  court  of. 
errors.® 

It  is  frequently  said  that  such  a  motion  is  addressed  to 
the  discretion  of  the  court  f  but  it  does  not  follow,  by  any 
means,  that  where  the  judgment  is  the  result,  or  may  have 
resulted,  from  some  error  of  the  court,  its  action  is  not 
subject  to  review.  The  contrary  is  uniformly  held.  But 
the  exception,  under  the  practice  in  most  of  the  states,  and 
in  the  federal  courts,  must  be  to  the  ruling  claimed  to  be 
erroneous,  and  not  to  the  action  of  the  court  in  ruling 
upon  the  motion.  In  some  of  the  states,  the  exception 
goes  directly  to  the  ruling  on  the  motion.  But  in  either 
case  it  is  a  question  of  practice  rather  than  of  jurisdiction, 
except  that  an  exception  to  the  ruling  on  the  motion,  in- 

'  Hanson  v.  Hanson,  20  Pac.  Rep.  736. 

2  Minkler  v.  Estate  of  Minkler,  14  Vt.  558. 

»  Godwin  v.  Monds,  101  N.  Car.  354 ;  7  S.  E.  Rep.  793. 

*  Grattan  v.  Matteson,  51  la.  622. 

5  Coleman  v.  Bell,  4  N.  Mex.  46;  12  Pac.  Rep.  657;  United  States  i\ 
Buford,  3  Pet.  12 ;  Brown  v.  Clarke,  4  How.  4 ;  Life  &  Fire  Ins.  Co.  v. 
Heirs  of  Wilson,  8  Pet.  291. 

«  Detroit  Tug,  etc.,  Co.  v.  Gartner,  75  Mich.  360;  42  N.  W.  Rep.  968; 
People  V.  Sutton,  73  Cal.  243 ;  15  Pac.  Rep.  86 ;  16  Am.  &  Eng.  Enc.  of 
Law,  503, 516. 


692      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

stead  of  the  error  complained  of,  may  prevent  an  appellate 
court  from  passing  upon  the  question.* 

In  some  of  the  states,  a  new  trial  is  allowed  to  the  losing 
party  as  of  right  in  certain  cases.'^ 

In  such  cases,  the  courts  have  no  power  to  deny  the  new 
trial  where  the  statute  providing  the  terms  upon  which  it 
shall  be  had  has  been  complied  with.^ 

The  question  whether  a  new  trial  can  be  had  after  the 
entry  of  judgment  depends  upon  statutory  provisions. 
At  common  law,  and  by  the  law  of  some  of  the  states,  a 
motion  for  a  new  trial  can  not  be  made  after  judgment;* 
but  under  most  of  the  codes  and  statutes,  the  motion  may 
be  made  within  the  time  limited,  whether  the  judgment 
has  been  entered  or  not.^ 

.    In  some  cases,  a  distinction  is  made  between  civil  and 
criminal  cases  in  this  respect.® 

Where  the  cause  assigned  is  newly  discovered  evidence, 
or  other  cause  discovered  too  late  to  present  it  earlier,  an 
affirmance  of  the  judgment  by  an  appellate  court  is  not  a 
bar  to  the  motion.^ 

85.  Writs  of  error. — Writs  of  error  are  of  two  kinds : 
coram  nobis,  which  was  returned  to  the  court  which  ren- 
dered the  judgment  sought  to  be  reviewed,  with  a  view  to 
the  correction  by  that  court  of  errors  of  fact  affecting  the 
validity  and  regularity  of  the  proceedings  and  which  were 
not  brought  into  the  issues ;  for  example,  such  as  the  death 
of  a  party  before  judgment,  or  the  legal  disability  of  a 
party  f  and  coram  vobis,  which  is  made  returnable  before  a 

^  Brown  v.  Clarke,  4  How.  4,  15. 

»  Lowe  V.  Foulke,  103  111.  58:  Rodman  v.  Reynolds,  114  Ind.  148;  16  N. 
E.  Rep.  516. 

'Rodman  t;.  Reynolds,  114  Ind.  148;  16  N.  E.  Rep.  516;  Keener  v. 
Union  Pac.  Ry.  Co.,  34  Fed.  Rep.  871. 

*  Conklin  v.  Hinds,  16  Minn.  457. 

5  Beals  V.  Reals,  20  Ind.  163 ;  Willis  v.  State,  62  Ind.  391. 

«  Willis  V.  State,  62  Ind.  391. 

'  Sheffield  v.  Mullen.  28  Minn.  £51 ;  9  N.  W.  Rep.  756. 

^  Ante,  sec.  84;  1  Black  on  Judg.,  sec.  300;  Anderson's  Die.  of  Law, 
260;  6  Am.  &  Eng.  Enc.  of  Law,  810;  Maple  v.  Havenhill,  37  111.  App. 


WKITS    OF    ERROR.  693 

superior  tribunal,  and  by  which  such  superior  court  is  au- 
thorized to  review  the  record.' 

The  former  is  almost  entirely  out  of  use,  having  been 
superseded  by  remedies  by  motion  in  the  court  rendering 
the  judgment.'' 

The  writ  of  error  now  in  use  is  a  commission  by  which 
a  court  of  superior  jurisdiction  is  authorized  to  examine  a 
record  upon  which  a  judgment  has  been  given  by  an  in- 
ferior court,  and,  on  such  examination,  to  aifirm  or  re- 
verse the  same  according  to  law.^  It  was  formerly  an 
original  writ  issuing  out  of  a  court  of  chancery.* 

311 ;  Dows  I'.  Harper,  6  Ohio,  518 ;  27  Am.  Dec.  270;  Wynne  v.  Governor, 
1  Yerger  (Tenn.),  149;  24  Am.  Dec.  448;  Holford  v.  Alexander,  46  Am. 
Dec.  253,  257,  note;  Land  v.  Williams,  12  S.  &  M.  (Miss.)  362;  51  Am. 
Dec.  117;  Wheeler  v.  Winn,  91  Am.  Dec.  193,  note;  Kemp  v.  Cook,  18 
Md.  130;  79  Am,  Dec.  681;  Life  Association  v.  Fassett,  102  111.  315; 
Bronson  v.  Schulten,  104  U.  S.  410;  Foster's  Fed.  Prac.  379;  Dugan  v, 
Scott,  37  Mo.  App.  663. 

^  Freeman  on  Judg.,  sec.  94. 

'  Holford  V.  Alexander,  46  Am.  Dec.  253,  257,  note  ;  McKinley  v.  Bucji, 
43  111.  488. 

^  Anderson's  Die.  of  Law,  412;  Lynes  v.  State,  5  Porter  (Ala.),  236;  30 
Am.  Dec.  557 ;  Holford  v.  Alexander,  46  Am.  Dec.  253,  257,  note ; 
Wheeler  v.  Winn,  91  Am.  Dec.  186,  193,  note ;  Cohens  r.  Virginia,  6 
Wheat.  264,  409;  Chipman  i:  City  of  Waterbury,  59  Conn.  496;  22  Atl. 
Rep.  289. 

"A  writ  of  error  is  a  writ  issuing  from  a  superior  court  commanding 
an  inferior  court  of  record  to  send  up  the  entire  record  of  a  contested 
procedure."     6  Am.  &  Eng.  Enc.  of  Law,  812. 

*  Lynes  v.  State,  5  Porter  (Ala.),  236;  30  Am.  Dec.  557. 

"  In  Co.  Lit.  288  b,  and  in  2  Bac.  Abr.  187,  a  writ  of  error  is  said 
to  be  an  original  writ,  issuing  out  of  the  court  of  chancery  in  the  na- 
ture as  well  of  a  certiorari,  to  remove  a  record  from  an  inferior  into  a 
superior  court,  as  of  a  commission  to  the  judges  of  such  superior  court, 
to  examine  the  record,  and  to  affirm  or  reverse  it,  according  to  law ;  and 
lies  where  a  party  is  aggrieved  by  any  error  in  the  foundation,  proceed- 
ing, judgment,  or  execution  of  a  suit  in  a  court  of  record.  This  writ 
does  not  owe  its  origin  to  a  statute.  Its  uses  have  been  in  some  in- 
stances directed  by  the  legislature,  and  as  a  remedial  process,  it  has  in 
some  cases  been  extended.  Its  name  indicates  its  true  purpose.  And 
in  the  case  of  The  Queen  v.  Paty,  2  Salk.  504,  it  was  held  to  be  grantable 
in  all  cases  ex  debito  justitise,  except  in  treason  and  felony :  See  further  to 
the  same  effect,  a  very  elaborate  note  to  2  Saund.  100,  n.  1.  In  treason 
and  felony  it  was  necessary  to  obtain  the  king's  consent  before  the  writ 


694       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

It  is  a  common  law  remedy  for  the  review  and  correc- 
tion of  errors  of  law  appearing  upon  the  face  of  the  re- 
cord;* but  is  one  that  is  regulated,  to  a  great  extent,  at  the 
present  day,  by  statute.^  It  is  held  that  the  remedy  is  not 
applicable  to  a  special  statutory  proceeding.'  The  record 
can  not  be  contradicted  under  the  writ,  but  is  conclusive.*        j 

The  record  includes  all  proper  bills  of  exceptions,  and  I. 
the  writ  will  therefore  reach  errors  occurring  at  the  trials 
as,  for  example,  rulings  upon  the  admission  of  evidence, 
and  the  like,  properly  brought  into  the  record  by  bill  of 
exceptions,  and  is  not  confined  to  errors  affecting  the 
pleadings  and  other  matters  which,  without  a  bill  of  ex- 
ceptions, would  appear  upon  the  face  of  the  record.^  As 
to  such  matters  it  must  affirmatively  appear  by  a  bill  of 
exceptions  that  error  was  committed;*  but  other  modes 
of  bringing  matters  into  the  record  than  by  bill  of  excep- 
tions may  be  provided  by  statute,  and  this  has  been  done 
in  some  of  the  states,  at  different  times,' 

.  The  writ,  as  it  existed  at  common  law,  can  not  be  used 
to  review  an  order  made  after  judgment.^ 

In  the  federal  courts  the  proper  proceeding  for  the  re- 
view of  a  judgment  at  law  is  by  a  writ  of  error  and  for 
the  review  of  a  decree  of  a  court  of  equity  or  admiralty 
by  appeal.' 

The  writ  is  the  proper  remedy  in  a  criminal  case.'° 

could  issue.  Yates  v.  People,  6  Johns.  337."  Lynes  v.  State,  5  Porter 
(Ala.),  236;  30  Am.  Dec.  557,  559. 

»  Suydam  v.  Williamson,  20  How.  427 ;  Gaffney  r.  People,  50  N.  Y. 
416;  People  v.  Casey,  72  N.  Y.  393;  Reece  v.  Knott,  3  Utah,  436;  24  Pac. 
Rep.  759. 

^  Chipman  v.  City  of  Waterbury,  59  Conn.  496 ;  22  Atl.  Rep.  289 ; 
Reece  v.  Knott,  3  Utah,  436;  24  Pac.  Rep.  759. 

3  Ray  V.  Gore,  36  N.  W.  Rep.  739. 

*  Holford  r.  Alexander,  12  Ala.  280;  46  Am.  Dec.  253. 

5  Suydam  v.  Williamson,  20  How.  427 ;  Gaffney  v.  People,  50  N.  Y.  416. 

"  Johnson  v.  Liiihtsey,  34  Ala.  169;  73  Am.  Dec.  450;  Kirk  v.  Murphy, 
16  Tex.  654;  67  Am.  Dec.  640;  Suydam  v.  Williamson,  20  How.  427. 

'  Wheeler  v.  Winn,  53  Pa.  St.  122;  91  Am.  Dec.  186. 

8  Polk  V.  Butterfield,  9  Colo.  325 ;  12  Pac.  Rep.  216, 

9  Foster's  Fed.  Prac,  sec.  394. 
1"  Twitchell  v.  Pennsylvania,  7  Wall.  321. 


I 


WKITS    OF    ERROR.  695 

As  a  rule,  the  office  of  the  writ  is  confined,  in  the  state 
courts, to  common  law  actions;  but  this  is  subject  to  statu- 
tory control,  and  in  some  of  the  states  the  writ  is  allowed 
to  review  decrees  in  equity  as  well  as  judgments  at  law.^ 

The  writ  can  not  be  used  to  control  or  affect  the  decision 
of  matters  resting  in  the  discretion  of  the  lower  court." 
It  will  issue  only  after  tinal  judgment,  and  can  not  be  used 
to  review  interlocutory  decisions,  orders  or  decrees.^  For 
this  reason  the  writ  will  not  issue  from  the  supreme  court 
of  the  United  States  to  a  state  court  of  last  resort  on  the 
reversal  of  a  cause,*  or  from  one  state  court  to  another  in 
such  case.' 

It  is  otherwise  where,  in  addition  to  a  reversal,  a  judg- 
ment is  ordered  to  be  entered  by  the  lower  court  that  will 
be  final.^  A  judgment  of  non-suit  is  a  final  judgment 
within  the  rule.^ 

The  writ  is  sometimes  held  to  be  a  writ  of  right  issuing 
as  of  course,^  and  it  is  generally  so  treated  in  practice  in 
the  state  courts.  As  to  the  writ  coram  nobis  it  is  held  that 
it  is  not  a  writ  of  right  and  can  only  issue  upon  a  showing 
of  some  error  of  fact.^  So  the  writ  will  not  issue  from 
the  federal  to  the  state  courts  as  a  matter  of  right.^" 

Litigants  have  no  vested  right  to  the  writ.  Therefore 
it  may  not  only  be  controlled  and  limited  by  statute,  but 
the  right  to  it  may  be  entirely  taken  away  in  the  absence 

^  Parish  v.  N,  Mexico  M.  Co.,  21  Pac.  Rep.  82. 

'  Wann  v.  McNulty,  2  Gil.  (111.)  355;  43  Am.  Dec.  58;  Delaware,  etc., 
Co.  V.  Nevelle,  51  N.  J.  Law,  332 ;  19  Atl.  Rep.  538. 

'  Hammond  v.  People,  32  111.  446 ;  83  Am.  Dec.  286 ;  Gerish  r.  John- 
son, 5  Minn.  23 ;  Young  r.  Jones,  89  Ga.  390 ;  15  S.  E.  Rep.  488  ;  Davis  v. 
Crouch,  94  U.  S.  514 ;  Brady  v.  Toledo,  etc.,  Co.,  73  Mich.  457  ;  41  N.  W. 
Rep.  503 ;  State  v.  Reed,  32  Pac.  Rep.  202. 

*  Davis  t'.  Crouch,  94  U.  S.  514. 

^  Buck  r.  County  of  Hamilton,  99  111.  507. 

*  Commissioners  v.  Lucas,  93  U.  S.  108. 

^  Murdock  v.  Martin,  132  Pa.  St.  86 ;  18  Atl.  Rep.  1114. 
'  Van  Antwerp  v.  Newman,  4  Cowen  (N.  Y.)  82;  15  Am.  Dec.  340. 
»  Tyler  v.  Morris,  4  Dev.  &  Bat.  Law  (N.  Car.)  487 ;  34  Am.  Dec.  395.    j| 
'"  Twitcbell  v.  Pennsylvania,  7  Wall.  321 ;  The  Anarchists  Case,  123  U, 
S.  131;  8  Sup.  Ct.  Rep."  21. 


696      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

of  any  constitutional  provision  preserving  the  right.^  It 
is  only  allowed  to  a  party  or  privy  to  the  judgment  or  one 
prejudiced  thereby,  and  such  interest  must  appear  from 
the  record,^  subject  of  course  to  the  right  of  substitution 
of  the  representatives  of  a  party  in  proper  cases.'^ 

In  some  of  the  cases  the  right  is  confined  to  parties  to 
the  record.* 

The  proceeding  is  so  far  an  original  one  that  notice 
thereof  must  be  given,  and  new  issues  formed.^  This  is 
true  of  the  writ  coram  nobis  as  well,® 

The  usual  mode  of  putting  the  proceeding  in  motion  is 
by  a  petition  for  the  writ,  the  form  and  substance  of  which 
is,  in  some  of  the  states,  provided  by  statute  ;^  and  upon 
the  filing  of  the  petition  a  summons  or  citation  issues.^ 

"Where  there  are  two  attorneys  of  record  for  the  same 
party,  service  upon  one  of  such  attorneys  is  sufficient  as  to 
that  party .^ 

The  pleading  of  the  plaintiff  is  the  assignment  of  errors, 
which  is  a  limitation  of  the  jurisdiction  of  the  court,  as 
only  such  errors  as  are  assigned  can  be  considered  by  the 
court  of  errors,^"  and  an  issue  is  formed  upon  the  assign- 
ment which  constitutes  the  matter  to  be  tried." 

A  presentation  to  and  decision  upon  the  question  by  the 
court  below  is  a  necessary  foundation  for  the  jurisdiction 
of  the  court  of  errors.  Therefore,  it  must  appear  from 
the  record  that  the  matter  in  controversy  was  presented  to 

1  People  V.  Richmond,  16  Colo.  274;  26  Pac.  Rep.  929. 

2  Townsend  v.  Davis,  1  Ga.  495 ;  44  Am.  Dec.  675 ;  Holford  v.  Alex- 
ander, 12  Ala.  280;  46  Am.  Dec.  253;  Smith  v.  Gerlach,  2  Tex.  424;  47 
Am.  Dec.  657;  Wheeler  v.  Winn,  91  Am.  Dec.  186,  194,  note. 

^  Life  Association  v.  Fassett,  102  111.  315. 

*  Moreau  v.  Saffarans,  3  Sneed  (Tenn.),  .595;  67  Am.  Dec.  582. 

6  Lessee  of  Taylor  v.  Boyd,  3  Ohio,  337.  354 ;  17  Am.  Dec.  603  ;  Widber 
V.  Superior  Court,  94  Cal.  430 ;  29  Pac.  Rep.  870 ;  International  Bank  v. 
Jenkins,  104  111.  143. 

«  Holford  V.  Alexander,  46  Am.  Dec.  253,  260,  note. 

'  Alliance  Milling  Co.  v.  Eaton,  24  S.  W.  Rep.  392. 
»     8  Schonfield  v.  Turner,  6  S.  W.  Rep.  628. 

9  Comstock  V.  Cole,  28  Neb.  470  ;  44  N.  W.  Rep.  487. 

1"  Parmelee  v.  Fischer,  22  111.  212;  74  Am.  Dec.  138. 

"  Holford  V.  Alexander,  46  Am.  Dec.  253,  260,  note. 


WRITS    OF    ERROR.  697 

the  lower  court  for  its  decision,  or  the  question  will  not 
be  considered  under  the  writ. 

Errors  of  fact  can  not  be  corrected  by  writ  of  error.*  For 
such  an  error,  the  remedy  is  by  motion  for  a  new  trial. ^ 

The  writ  has  been  abolished  by  some  of  the  states,  and 
all  questions  that  might  have  been  reviewed  under  the 
writ  at  common  law  are  made  reviewable  by  appeal.^ 

The  legislature  has  the  power  to  regulate  and  determine 
the  mode  by  which  questions  may  be  presented  to  appel- 
late courts  for  review.^ 

Where  it  is  provided  by  statute  that  the  same  shall  be 
taken  up  and  presented  by  appeal,  without  in  terms  abol- 
ishing the  writ  of  error,  such  writ  will  only  be  allowed  in 
a  case  where  no  appeal  is  allowed  by  statute.*  In  many 
of  the  states,  however,  either  an  appeal  or  a  writ  of  error 
are  allowed  in  the  same  action,  at  the  option  of  the  party, 
and  in  some  cases  both  may  be  prosecuted. 

Provisions  are  made  by  statutes  of  the  United  States 
and  of  the  several  states  regulating  the  jurisdiction  under 
the  writ,  as  to  amount,  as  to  the  time  within  which  the 
writ  may  issue,  providing  in  what  cases  the  writ  may  issue 
from  the  supreme  court  of  the  United  States  to  the  state 
courts,  and  otherwise  regulating  and  limiting  the  jurisdic- 
tion of  the  different  courts.  It  is  not  within  the  scope  of 
this  work  to  attempt  to  review  these  provisions  or  to  refer 
to  these  statutory  regulations,  which  are  different,  proba- 
bly, in  every  state.  In  some  of  the  states,  the  jurisdiction 
has  been  extended  by  constitutional  and  statutory  provi- 
sions so  as  to  authorize  the  review  of  orders  and  judgments 
that  would  not  have  been  reviewable  under  the  common 
law  writ.^ 

1  People  V.  Haynes,  14  Wend.  546;  28  Am.  Dec.  530. 

*  6  Am.  &  Eng.  Enc.  of  Law,  835 ;  Thurber  r.  Townsena,  22  N.  Y.  517. 
3  Haight  V.  Gay,  8  Cal.  297 ;  68  Am.  Dec.  323 ;  People  r.  Richmond,  16 

Colo.  274;  26  Pac.  Rep.  929. 

*  Haight  V.  Gay,  8  Cal.  297;  68  Am.  Dec.  323;  Sacramento,  etc.,  R.  R. 
Co.  V.  Harlan,  24  Cal.  334 ;  Widber  v.  Superior  Conrt,  94  Cal.  430 ;  29 
Pac.  Rep.  870;  Livingston  v.  State,  70  Tex.  393;  11  S.  \V.  Rep.  115. 

^  Union  Church  v.  Sanders,  1  Hous.  (Del.)  100;  63  Am.  Dec.  187 


I 


698      COMMON  LAVt,  EQUITY,  AND  STATUTORY  JURISDICTION. 

A  writ  of  error  suspends  proceedings  in  the  court  be- 
low, but  does  not  vacate  the  judgment  sought  to  be  re- 
versed.^ 

Where  a  petition  for  the  writ  is  provided  for,  the  filing 
of  the  petition  is  held  to  suspend  all  further  action  in  the 
court  below.'' 

Jurisdiction  of  the  writ  can  not  be  conferred  by  consent 
of  parties  where  the  court  has  none  by  law.' 

86.  Certiorari. — The  writ  of  certiorari  is  a  writ  by  which 
the  record  of  a  proceeding  in  a  lower  court  is  removed 
into  a  higher  court  for  review.*  It  is  one  of  the  means  by 
and  through  which  superior  courts  exercise  and  enforce 
their  supervisory  power  and  control  over  courts  and  tri- 
bunals of  inferior  jurisdiction,^  and  lies  where  the  party 
aggrieved  has  no  adequate  and  speedy  remedy  by  the 
ordinary  proceedings  at  law,  as,  for  example,  by  writ  of 
error  or  appeal,  or  by  motion  in  the  court  before  which 
the  action  is  pending.® 

It  is  held  in  some  of  the  cases  that  the  fact  that  a  party 
has  his  remedy  by  appeal  or  writ  of  error  will  not  deprive 
him  of  the  right  to  resort  to  the  writ  where  it  is  claimed 

1  Railway  Co.  v.  Twombly,  100  U.  S.  78,  81. 

^  Texas  State  Fair  v.  Lyon,  24  S.  W.  Rep.  328. 

'  Chipman  v.  City  of  Waterbury,  59  Conn.  496;  22  At\.  Rep.  289. 

*  Anderson's  Die.  of  Law,  161. 

^  Le  Roy  v.  Mayor,  20  Johns.  430 ;  11  Am.  Dec.  289;  Jackson  v.  People, 
9  Mich.  Ill ;  77  Am.  Dec.  491 ;  Miller  v.  Trustees,  88  111.  26 ;  State  v. 
Webber,  37  N.  W.  Rep.  949;  City  of  Camden  v.  Mulford,  26  N.  J.  Law, 
49;  Drainage  Commissioners  v.  Giffin,  134  111.  330;  25  N.  E.  Rep.  995; 
Mowery  v.  City  of  Camden,  49  N.  J.  Law.  106  ;  6  Atl.  Rep.  438  ;  State  v. 
Herndon,  107  N.  Car.  934 ;  12  S.  E.  Rep.  268. 

«  Alabama  G.  S.  R.  Co.  v.  Christian,  82  Ala.  307 ;  1  Sou.  Rep.  121 ;  Faut 
V.  Mason,  47  Cal.  7 ;  Stuttmeister  v.  Superior  Court,  71  Cal.  322  ;  In  re 
Stuttmeister,  12  Pac.  Rep.  270 ;  Donahue  v.  County  of  Will,  100  111.  94 ; 
Hyslop  V.  Finch,  99  111.  171 ;  Miller  v.  Trustees,  88  111.  26 ;  Saunders  v. 
Sioux  City  Nursery,  6  Utah,  431 ;  24  Pac.  Rep.  532  ;  Ducheneau  v.  House, 
4  Utah,  363 ;  10  Pac.  Rep.  427 ;  Nevada  Cent.  R.  Co.  v.  District  Court,  21 
Nev.  409 ;  32  Pac.  Rep.  673 ;  Poe  v.  Machine  Works,  24  W.Va.  517 ;  State 
V.  Webber,  37  N.W.  Rep.  949;  Harris  v.  Barber,  129  U.  S.  366 ;  9  Sup.  Ct. 
Rep.  314;  Trustees  of  Schools  v.  Shepherd,  139  111.  114;  28  N.  E.  Rep. 
1073 ;  State  v.  Probate  Court,  51  Minn.  241 ;  53  N.  W.  Rep.  463. 


CEKTIORARI,  699 

that  the  judgment  is  void  for  want  of  jurisdiction.^  But 
in  most  of  the  codes  or  statutes  on  the  subject  the  limita- 
tion of  the  right  to  the  writ  to  cases  where  the  party  has 
no  speedy  and  adequate  remedy  hy  appeal  or  other  ordi- 
nary proceeding  is  general  and  applies  to  cases  wdiere  there 
•  is  want  of  jurisdiction,  as  well  as  to  others,  if  the  writ  is 
allowed  for  other  causes.^ 

To  the  extent  that  the  writ  is  necessary  to  uphold  and 
enforce  the  general  powder  of  supervision  w-hich  belongs  to 
all  superior  courts,  such  courts  can  not  be  deprived  of  the 
power  to  use  it  by  a  statutory  provision  abolishing  the 
common  law  writ.^  So  where  the  power  to  issue  the  writ 
is  given  by  the  constitution.*  But  the  remedy  may,  as  we 
shall  see  hereafter,  be  taken  away  by  providing  another  by 
appeal  or  otherwise,  and  this  is  held  to  be  so  even  where 
the  judgment  is  absolutely  void.^ 

The  writ  has  been  defined  as  one  "  issuing  from  a  supe- 
rior court  to  an  inferior  court,  tribunal,  or  ofiicer  exercis- 
ing judicial  powers,  whose  proceedings  are  summary,  or 
in  a  course  different  from  the  common  law,  commanding 
the  latter  to  return  tbe  records  of  a  cause  depending  be- 
fore it  to  the  superior  court."  ^ 

The  limitation  of  the  right  to  the  writ  to  courts  whose 
proceedings  are  summary  and  not  according  to  the  course 
of  the  common  law,  rests  upon  the  doctrine  that  for  the 
correction  of  errors  in  the  proceedings  of  a  common  law 
court  a  writ  of  error  is  the  proper  remedy,  but  that  it  will 

1  Gaither  v.  Watkins,  66  Md.  576;  8  Atl.  Rep.  464;  Memphis,  etc.,  R. 
Co.  V.  Brannum,  11  Sou.  Rep.  468  ;  Harris  v.  Barber,  129  U.  S.  366 ;  9  Sup. 
Ct.  Rep.  314. 

'  Sioux  Falls  Nat.  Bank  r.  McKee,  50  N.  W.  Rep.  1057. 

'  Jackson  v.  People,  9  Mich.  Ill ;  77  Am.  Dec.  491. 

*  Vaughn  v.  City  of  Ashland,  37  N.  W.  Rep.  809.  But  see  on  this  point 
People  V.  Board  of  Supervisors,  2  N.  Y.  Supl.  555. 

^  Sioux  Falls  Nat.  Bank  v.  McKee,  50  N.  W.  Rep.  1057. 

®  3  Am.  &  Eng.  Enc.  of  Law,  60 ;  Alabama  G.  S.  R.  Co.  v.  Christian, 
82  Ala.  307 ;  1  Sou.  Rep.  121  ;  Dryden  v.  Swinburn,  15  AV.  Va.  234 ;  Les- 
see of  Walpole  V.  Ink,  9  Ohio,  142  ;  Wedel  v.  Green,  70  Mich.  642;  38  N. 
W.  Rep.  638 ;  Farmington  River,  etc.,  Co.  v.  County  Commissioners,  112 
Mass.  206,  212. 


700        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

not  run  to  a  statutory  court  which  proceeds  summarily 
and  not  according  to  the  course  of  the  common  law,  and 
therefore  the  writ  of  certiorari  will  be  allowed  where  a 
writ  of  error  can  not  be  prosecuted.^ 

It  would  seem  from  this  that  the  writ  of  certiorari  is  the 
appropriate  remedy  where  judgments  or  proceedings  can 
not  be  reached  by  writs  of  error  and  for  the  reason  that 
they  can  not  be  so  reached,  and  that  the  office  of  the  writ 
is  the  same  as  the  writ  of  error.^  But  it  will  be  seen  fur- 
ther on  in  this  section  that  the  writ  is  not  generally  so 
regarded,  or  treated,  in  practice.  This  results,  partly, 
from  statutory  provisions  changing  the  character  of  the 
writ,  but  it  is  the  result,  also,  of  the  diversity  of  judicial 
decisions  which  have  warped  the  writ  out  of  all  sem- 
blance of  itself  and  in  almost  every  conceivable  way, 
and  made  it  a  difi'erent  writ  in  almost  every  state  in  this 
country. 

Undoubtedly  the  principle  upon  which  certiorari  is  gen- 
erally allowed  is  that  it  is  necessary  to  protect  a  party 
where  a  remedy  by  ordinary  methods  is  not  open  to  him, 
and  to  prevent  injustice  which  must  result  from  the  want 
of  such  other  remedy.  So  considered  it  is  a  highly  impor- 
tant and  useful  writ,  and  the  rules  governing  its  issuance 
and  enforcement  are  simple  enough.  But  the  issuance  of 
the  writ,  the  jurisdiction  of  the  courts  respecting  it,  and 
the  practice  relating  to  the  proceedings  under  it  can  not 
be  said  to  rest,  at  the  present  day,  upon  any  fixed  or  intel- 
ligible principles.  Properly  regarded  the  writ  has  two 
objects,  viz.,  to  supply  the  place  of  a  writ  of  error  where 
the  lower  court  is  such  that  its  proceeding  can  not  be  re- 
viewed by  the  latter  writ,  and  to  test  the  jurisdiction  of  the 
court  without  reference  to  the  existence  of  some  other 
remedy. 

So  the  jurisdiction  of  the  courts  would  be  simple  enough 
if  the  writ  were  regarded  as  in  the  nature  of  a  writ  of  error, 

'  Dryden  v.  Swinburn,  15  W.  Va.  234,  251 ;  Lessee  of  Walpole  v.  Ink,  9 
Ohio,  142. 

^  Farmington  River,  etc.,  Co.  v.  County  Commissioners,  112  Mass.  206, 
212 ;  Harris  v.  Barber,  129  U.  S.  366 ;  9  Sup.  Ct.  Rep.  314. 


"^: 


CERTIORARI.  701 

or  appeal  for  the  correction  of  errors  of  law,  where  neither 
of  these  remedies  were  allowed;  and  allowed,  also,  to  test 
the  jurisdiction  of  the  court,  and  for  that  purpose  only, 
whether  a  writ  of  error  or  appeal  is  allowed  or  not.  It  is 
quite  evident  that  the  common  law  writ  was  never  in- 
tended to  extend  further  than  this.  For  one  of  these 
purposes  it  is  in  all  essential  respects  a  writ  of  error,  and- 
for  the  other  a  jurisdictional  writ  entirely,  and  only  avail- 
able where  the  judgment  attacked  is  void  for  want  of 
jurisdiction,  either  of  the  subject-matter  or  of  the  per- 
son.^ 

'  Harris  r.  Barber,  129  U.  S,  366 ;  9  Sup.  Ct.  Rep.  314. 

The  different  modes  of  reviewing  the  proceedings  and  judgments  of 
inferior  courts  and  the  distinction  between  them,  as  well  as  the  effect 
of  statutory  provisions  respecting  them,  are  thus  stated  in  a  late  case: 
"  Prior  to  the  act  of  May  9,  1889,  there  were  three  of  these  in  common 
use,  and  the  peculiar  characteristics  of  each  were  well  understood  by 
the  profession.  That  most  generally  employed  was  the  writ  of  error, 
which  lay  against  any  final  judgment  in  any  court  of  record,  and  against 
such  interlocutory  and  auxiliary  orders  as  have  been  made  reviewable 
upon  it  by  statute.  On  this  writ  the  judgment  is  reviewed  with  refer- 
ence to  alleged  errors  which  are  pointed  out  by  exceptions  taken  to  the 
action  of  the  trial  court  at  the  time  when  the  rulings  are  made,  and  as 
a  general  rule  the  power  of  the  supreme  court  is  limited  to  the  ques- 
tions so  raised.  Poor  District  of  Warsaw  v.  Poor  District  of  Knox 
Township,  107  Pa.  St.  301.  In  all  equity  cases,  and  those  following  the 
equity  forms,  an  appeal  from  the  decree  complained  of  is  the  proper 
mode  of  review.  It  brings  up  the  pleadings  and  the  evidence  on  which 
the  decree  rests,  and  makes  it  necessary  for  the  appellate  court  to  ex- 
amine, and  see  whether  the  decision  is  just  and  conscionable  on  the 
case  that  was  presented  to  the  chancellor  who  made  it.  The  remaining 
method  was  by  writ  of  certiorari.  This  writ  brought  up  the  record  in 
any  given  case  for  review  and  correction,  but  it  brought  the  record  only. 
Carlson's  License,  127  Pa.  St.  330;  18  Atl.  Rep.  8;  Holland  v.  White, 
120  Pa.  St.  228;  13  Atl.  Rep.  782,  783.  The  errors  to  be  corrected  must 
appear  on  the  face  of  the  record  (Chase  v.  Miller,  41  Pa.  St.  403),  and 
the  merits  can  not  be  inquired  into  upon  this  writ,  but  are  left  to  the 
judgment  of  the  court  below.  (Election  cases,  65  Pa.  St.  20.)  Neither 
the  opinion  of  the  court,  nor  the  evidence,  forms  any  part  of  the  rec- 
ord proper,  and  for  that  reason  they  will  not  be  examined  on  certiorari. 
Holland  v.  White,  supra.  The  character  of  the  proceeding  to  be  re- 
viewed, suggested,  therefore,  the  method  to  be  adopted,  and  the  limits 
within  which  the  practitioner  should  direct  his  preparation.  Since  the 
act  of  1889,  these  modes  remain  applicable  in  the  same  cases,  within  the 
same  limits,  and  with  the  same  effect  as  before,  the  only  difference  be- 


702      COMMON  LAW,  EQUITY,  AND  STATUTOHY  JURISDICTION. 

The  definition  given  above  does  not  cover  the  writ  as  it 
is  generally  used  at  the  present  day.  Its  ofiice  is  not  con- 
fined to  the  supervision  of  courts  whose  proceedings  are 
summary,  or  difierent  from  the  course  of  the  common  law, 
although  the  common  law  writ,  so  construed,  is  adopted 
in  some  of  the  states.^  On  the  contrary,  it  runs  to  all  in- 
ferior courts  in  proper  cases,  whether  they  be  common 
law  or  statutory  courts,  or  whether  their  jurisdiction  is 
summary  or  in  accordance  with  the  common-law  proceed- 
ings;^ and  to /tribunals  other  than  courts  exercising  ju- 
dicial or  g-tiasi  judicial  functions.^ 

ing  that  now  they  are  all  called  by  the  same  name.  That  act  provides 
'  that  all  appellate  proceedings  in  the  supreme  court  heretofore  taken 
by  writ  of  error,  appeal  or  certiorari,  shall  hereafter  be  taken  in  a  pro- 
ceeding to  be  called  an  "  appeal."  '  It  will  be  noticed  that  this  act  does 
not  profess  to  extend  the  right  of  review,  to  change  its  extent  in  cases 
already  provided  for,  or  to  modify  in  any  manner  its  exercise.  It  simply 
provides  that  dissimilar  proceedings  shall  be  called  by  the  same  name. 
An  appeal  in  name  may  therefore  be  a  writ  of  error  or  a  certiorari  in 
legal  effect,  and  it  is  necessary,  in  every  case,  to  look  into  the  record, 
and  determine  at  the  outset  of  our  examination,  whether  what  is  '  called 
an  "  appeal  "  '  is  such  in  fact,  or  is  a  writ  of  error  or  a  certiorari.  The 
practical  effect  of  calling  proceedings  so  essentially  unlike  by  the  same 
name  is  to  obscure  and  divert  attention  from  the  peculiar  characteristics^ 
of  each.  This  increases  the  sense  of  uncertainty  on  the  part  of-  the 
practitioner,  and  the  labor  on  the  part  of  the  appellate  court."  Appeal 
of  Long,  134  Pa.  St.  641 ;  19  Atl.  Rep.  806. 

^  Lessee  of  Walpole  v.  Ink,  9  Ohio,  142;  Farmington  River,  etc.,  Co. 
V.  County  Commissioners,  112  Mass.  206,  212. 

'  Miller  v.  Trustees,  88  111.  26. 

3  Le  Roy  z).  Mayor,  20  Johns.  430 ;  11  Am.  Dec.  289;  State  v.  Dodge 
County,  56  Wis.  79;  13  N.  W.  Rep.  680. 

"As  examples  of  inferior  tribunals  to  which  a  certiorari  lay  at  the  com- 
mon law,  the  following  may  be  instanced  in  England :  the  court  leet, 
the  quarter  sessions,  the  Old  Bailey,  the  sessions  of  the  city  of  Rochester, 
two  justices  authorized  by  statute  to  appoint  overseers  of  the  poor, 
justices  in  eyre,  justices  of  jail,  justices  of  a  county  palatine,  the  college 
of  physicians  having  a  special  power  by  statute  to  impose  fines,  etc., 
justices  of  the  peace,  etc.,  even  in  those  cases  in  which  they  are  em- 
jiowered  by  statute  finally  to  hear  and  to  determine ;  commissioners  of 
sewers,  the  courts  of  the  cinque  ports,  the  grand  sessions,  and  other 
courts  in  Wales,  the  city  courts  of  London  and  Middlesex,  justices  of 
assize,  orders  of  conviction  on  the  conventicle  act,  22  Car.  II.,  c.  1, 
and  orders  on   appeal   from  scavenger's  rate,  orders  of  bastardy,  an 


CERTIORARI.  703 

At  common  law  it  was  an  extraordinary  legal  remedy;^ 
but,  under  many  of  the  statutes  in  this  country,  it  has 
become,  to  a  very  great  extent,  an  ordinary  writ  for  the 
correction  of  errors.  Hence  the  reference  in  so  many  of 
the  cases  to  the  common-law  writ  of  certiorari  as  distin- 
guished from  the  statutory  writ.  Under  the  former  En- 
glish practice,  the  writ,  for  one  of  its  purposes,  might- 
issue  at  any  stage  of  the  proceedings,  and,  when  issued 
during  the  pendency  of  the  action,  had  the  effect  to  trans- 
fer the  action  from  the  lower  to  the  higher  court  for  fur- 
ther proceeding  in  that  court.^  And  such  a  transfer  and 
trial  de  novo  are  allowed  by  statute  in  some  of  the  states,^ 
or  the  court  is  authorized  to  enter  such  judgment  as  the 
law  requires  instead  of  remanding  the  cause/     But,  as  a 

inquisition  taken  before  the  sheriff  under  a  private  act  of  Parliament. 
2  Bac.  Abr.  163. 

"  Examples  of  like  inferior  tribunals  in  the  several  states  of  the  Union 
are  too  numerous  and  diverse  to  mention,  such  as  commissioners  of 
highways  in  New  York:  People  t'.  Van  Alstyne,  32  Barb.  132;  quarter 
sessions  in  Pennsylvania  in  laying  out  higways:  Ruhlraan  v.  Common- 
wealth, 5  Binn.  24;  Buckmyer  v.  Dubs,  5  Id.  29;  Baltimore  Turnpike 
Case,  5  Id.  482;  the  courts  of  sessions  in  Maine  in  laying  out  roads: 
Bath  Bridge  &  T.  Co.  v.  Magoun,  8  ]\Ie.  292  ;  the  court  of  common  pleas 
acting  under  the  statute  for  the  support  and  regulation  of  mills:  Com- 
monwealth r.  Ellis,  11  Mass.  462;  the  county  court  in  North  Carolina: 
Anonymous,  1  Hayw.  303  ;  justices'  court  for  trial  of  negroes  for  felony 
under  statute  in  Tennessee:  Bob  v.  State,  2  Yerg.  173;  and  justices' 
court  under  act  for  punishment  of  riots,  etc.,  in  Virginia:  Mackaboy  v. 
Commonwealth,  2  Va.  Cas.  269.  A  tribunal  which  is  not  a  common-law 
court,  which  does  not  proceed  according  to  the  course  of  the  common 
law,  a  newly  created,  limited,  and  special  jurisdiction  from  which  no 
appeal  is  allowed  by  statute,  nor  writ  of  error  by  the  common  law,  yet 
determining  in  a  summary  way  the  most  important  rights  and  fran- 
chises, both  as  respects  the  people  and  private  persons,  is  and  can  not 
be  otherwise  than  an  inferior  tribunal  in  the  strictest  sense  of  the  word." 
Cunningham  v.  Squires,  2  W.  Va.  422 ;  98  Am.  Dec.  770. 

>  Alabama  G.  S.  R.  Co.  v.  Christian,  82  Ala.  307 ;  1  Sou.  Rep.  121. 

^  Duggen  V.  McGruder,  12  Am.  Dec.  532,  note;  Dryden  v.  Swinburn, 
20  W.  Va.  89,  105 ;  Lessee  of  Walpole  v.  Ink,  9  Ohio,  142 ;  Bee  v.  Sea- 
man, 36  W.  Va.  381  ;  15  S.  E.  Rep.  173. 

^  Duggen  t'.  McGruder,  12  Am.  Dec.  532,  note  ;  Linch  v.  Broad,  70  Tex. 
92 ;  6  S.  W.  Rep.  751 ;  AVright  v.  Hurt,  92  Ala.  591 ;  9  Sou.  Rep.  386. 

^  Old  Colony  R.  Co.  v.  City  of  Fall  River,  147  Mass.  455 ;  18  N.  E.  Rep. 
425. 


1 


704     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

general  rule,  the  writ  in  this  country  is  not  allowed  until 
after  final  judgment,  as  in  case  of  a  writ  of  error,'  but  may 
be  used  to  review  proceedings  subsequent  to  the  judgment,^ 
and  may,  in  the  discretion  of  the  court,  issue  before  final 
judgment  in  a  proper  case.^  So  in  some  of  the  states, 
where  the  writ  issues  after  final  judgment,  a  new  trial  may 
be  ordered  and  such  new  trial  had  in  the  court  issuing  the 
writ.*  This  can  not  be  done,  however,  where  the  writ  is 
allowed  to  test  the  jurisdiction  of  the  court  and  not  as  a 
substitute  for  a  writ  of  error  or  appeal. 

The  writ  is  remedial,  and  not  preventive,  and  can  not  be 
used  to  prevent  an  anticipated  act  in  excess  of  jurisdic- 
tion.'^ 

In  some  of  the  states  it  is  treated  as  a  purely  juris- 
dictional writ,  at  common  law,  and  where  not  changed  or 
modified  by  statute  ;  its  object  being  to  determine  whether 
the  inferior  court  or  tribunal  has  acted  within  its  jurisdic- 
tion,^ and  not  to  correct  errors  or  irregularities,  or  to  re- 
verse or  affirm  the  proceedings  of  the  lower  court.^     But 

'  Duggen  V.  McGruder,  12  Am.  Dec.  531,  note  ;  Chicago  '&  N.  W.  Ry. 
Co.  V.  Osborne,  146  U.  S.  354 ;  13  Sup.  Ct.  Rep.  281 ;  Lessee  of  Walpole 
V.  Ink,  9  Ohio,  142 ;  Sayers  v.  Superior  Court,  84  Cal.  642  ;  24  Pac.  Rep. 
296;  People  v.  Gilon,  13  N.  Y.  Supl.  455 ;  State  v.  District  Court,  44  Minn. 
244;  46  N.  W.  Rep.  349;  Bee  v.  Seaman,  36  W.  Va.  381 ;  15  S.  E.  Rep. 
173;  State  v.  Edwards,  104  Mo.  125;  16  S.  W.  Rep.  117;  State  v.  Georgia 
Co.,  109  N.  Car.  310;  13  S.  E.  Rep.  861. 

"  Krumeick  v.  Krumeick,  14  N.  J.  Law,  39,  41. 

3  Mowery  v.  City  of  Camden,  49  N.  J.  Law,  106;  6  Atl.  Rep.  438. 

*  Bee  V.  Seaman,  36  W.  Va.  381 ;  15  S.  E.  Rep.  173. 

*  Sayers  v.  Superior  Court,  84  Cal.  642 ;  24  Pac.  Rep.  296. 

«  People  V.  Board  of  Delegates,  14  Cal.  479,  494, 499;  Varrell  v.  Church, 
36  Wis.  318;  Milwaukee  Iron  Co.  v.  Schubel,  29  Wis.  444;  9  Am.  Rep. 
591 ;  Smith  v.  Bahr,  62  Wis.  244;  22  N.  W.  Rep.  438;  State  v.  Monroe,  41 
La.  Ann.  314;  6  Sou.  Rep.'  539;  State  v.  Houston,  40  La.  Ann.  434;  4 
Sou.  Rep.  131  ;  Finch  v.  Tehama  Co.,  29  Cal.  454;  Alexander  v.  Archer,  21 
Nev.  22 ;  24  Pac.  Rep.  373 ;  Sherer  v.  Superior  Court,  96  Cal.  653  ;  31  Pac. 
Rep.  565;  Andrews  v.  Pratt,  44  Cal.  309;  State  v.  Smith,  101  Mo.  174;  14 
S.  W.  Rep.  108;  Harris  v.  Barber,  129  U.  S.  366;  9  Sup.  Ct.  Rep.  314; 
Carolan  v.  Carolan,  47  Ark.  511 ;  2  S.  W.  Rep.  105;  State  v.  Moniteau,  45 
Mo.  App.  387. 

'  Varrell  v.  Church,  36  Wis.  318 ;  People  v.  Highway  Commissioners,  30 


CERTIORARI.  705 

the  writ  is  not  confined  to  the  question  of  jurisdiction  of 
the  subject-matter,  but  extends  to  a  want  of  jurisdiction 
of  the  person  as  welL^  Under  such  a  rule  the  proceedings 
of  the  lower  court  can  only  be  reached  by  the  writ  when 
they  are  absolutely  void.^ 

In  some  of  the  cases  it  is  held  that  the  question  whether 
the  inferior  tribunal  has  proceeded  regularly,  or  according 
to  law,  may  be  inquired  into,^  which  may  be  given  a  very' 
broad  or  a  very  narrow  meaning.  A  court  which  acts 
upon  an  erroneous  view  of  the  law  which  should  govern 
the  decision  of  a  cause,  or  commits  errors  from  which  an 
erroneous  conclusion  is  reached,  can  not  be  said  to  have 
proceeded  according  to  law.  But  what  is  meant  by  not 
proceeding  according  to  law,  in  this  connection,  is,  in  sub- 
stance, that  the  forms  of  law  which  should  be  observed  in 
the  administration  of  justice  have  not  been  followed  ;  for 
example,  a  judgment  rendered  without  a  trial,  where 
the  parties  were  entitled  to  and  were  demanding  it, 
would  be  w^ithin  this  ground  for  the  writ.  But  if  the 
court  should,  during  the  trial,  commit  an  error  in  refusing 
to  permit  the  introduction  of  competent  evidence,  or  any 
other  error  affecting  the  rights  of  the  parties,  it  would  be 
nothing  more  than  an  erroneous  decision  and  not  a  de- 
parture  from  the  established  forms  of  procedure.*     And 

N.  Y.  72 ;  Petty  r.  Ducker,  51  Ark.  281 ;  11  S.  W.  Rep.  2 ;  State  v.  Perrault, 
41  La.  Ann.  179;  6  Sou.  Rep.  18;  Carolan  v.  Carolan,  47  Ark.  511 ;  2  S. 
W.  Rep.  105  ;  State  v.  Moniteau,  45  Mo.  App.  387. 

1  La  Grand  v.  Fairhall,  53  N.  W.  Rep.  115;  Memphis,  etc.,  C.  Co.  v. 
Brannum,  11  Sou.  Rep.  468;  Carolan  v.  Carolan,  47  Ark.  511;  2  S.  W. 
Rep.  105. 

^  State  V.  Koenig,  39  La.  Ann.  776;  2  Sou.  Rep.  559;  Petty  t'.  Ducker, 
51  Ark.  281 ;  11  S.  W.  Rep.  2 ;  State  v.  Riley,  8  Sou.  Rep.  598;  State  r. 
Coco,  7  Sou.  Rep.  620. 

3  Donahue  v.  County  of  Will,  100  111.  94 ;  Blair  v.  Sennott,  134  111.  78 ; 
24  N.  E.  Rep.  969;  People  v.  Board  of  Assessors,  39  N.  Y.  81,  88;  State 
V.  Rightor,  39  La.  Ann.  619 ;  2  Sou.  Rep.  385 ;  State  v.  Perrault,  41  La. 
Ann.  179  ;  6  Sou.  Rep.  18;  Tomlineon  v.  Board  of  Equalization,  88  Tenn. 
1 ;  12  S.  W.  Rep.  414. 

*  DooUttle  V.  Galena,  etc.,  R.  Co.,  14  111.  381 ;  People  v.  Board  of  As- 
45 


706        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTIOX, 

at  last  this  is  really  au  excess  of  jurisdiction  and  should 
be  included  within  that  ground  for  the  writ.  It  is  a  ques- 
tion that  affects  the  validity  of  the  judgment,  and  a  judg- 
ment that  is  invalid  or  illegal  is  one  rendered  in  excess  of 
or  without  jurisdiction.^ 

sessors,  39  N.  Y.  81,  88;  Tomlinson  v.  Board  of  Equalization,  88  Tenn. 
1 ;  12  S.  W.  Rep.  414. 

^  "  The  oflBce  of  the  writ  of  certiorari  in  this  state  is  defined  by  statute 
(Pr.  Act,  sec.  456),  and  only  embraces  cases  in  which  '  an  inferior  tribu- 
nal, board,  or  officer,  exercising  judicial  functions,  has  exceeded  the 
jurisdiction  of  such  tribunal,  board,  or  officer,  and  there  is  no  appeal, 
nor,  in  the  judgment  of  the  court,  any  plain,  speedy,  and  adequate 
remedy.'  These  are  the  only  cases  in  which  the  writ  lies,  and  upon  its 
return  the  sole  inquiry  to  be  made  is  '  whether  the  inferior  tribunal, 
board,  or  officer,  has  regularly  pursued  the  authority  of  such  tribunal, 
board,  or  officer.'  (Sec.  462.)  'Has  exceeded  the  jurisdiction  of  such  tribu- 
nal, board,'  etc.,  and  '  has  regularly  pursued  the  authority  of  such  tribunal, 
board,'  etc.,  as  expressed  in  these  two  respective  sections  of  the  Practice 
Act,  present  substantially  the  same  idea.  Mere  irregularity  intervening 
in  the  exercise  of  an  admitted  jurisdiction — mere  mistakes  of  law  com- 
mitted in  conducting  the  proceedings  in  an  inquiry  which  the  board 
had  authority  to  entertain — as,  for  instance,  the  admission  of  evidence 
not  the  best  in  degree,  or  not  applicable  to  the  issue  in  hand,  are  not  to 
be  considered  here  upon  certiorari,  otherwise  that  writ  is  to  be  turned 
into  a  writ  of  error."  Central  Pac.  R.  Co.  v.  Placer  Co.,  43  Cal.  365,  367 ; 
Reilly  v.  Tyng,  1  Ariz.  510 ;  25  Pac.  Rep.  798 ;  Tomlinson  v.  Board  of 
Equalization,  88  Tenn.  1 ;  12  S.  W.  Rep.  414. 

The  effect  of  the  writ  has  been  thus  tersely  stated  :  "  The  common- 
law  writ  of  certiorari  simply  brings  before  the  court,  for  inspection,  the 
record  of  the  commissioners  of  highways;  and  its  judgment  affects  the 
validity  of  the  record  alone — i.  e.,  determines  that  it  is  valid  or  invalid." 
Hyslop  V.  Finch,  99  111.  171,  177. 

And  again:  "  Its  office  extends,  unquestionably,  to  the  review  of  all 
questions  of  jurisdiction,  power,  and  authority  of  the  inferior  tribunal 
to  do  the  acts  complained  of,  and  all  questions  of  regularity  in  the  pro- 
ceedings, that  is,  all  questions  whether  the  inferior  tribunal 'has  kept 
within  the  boundaries  prescribed  for  it  by  the  express  terms  of  the 
statute  law  or  by  well-settled  principles  of  the  common  law."  People 
V.  Board  of  Assessors,  39  N.  Y.  81,  88. 

"  Having  disposed  of  this  preliminary  question,  the  next  inquiry  is, 
to  what  extent  can  this  court  go  in  reviewing  the  proceedings  of  the 
board  of  delegates?  Section  462 of  the  Practice  Act  provides  that  'the 
review  upon  this  writ  shall  not  be  extended  further  than  to  determine 
whether  the  inferior  tribunal,  board,  or  officer,  has  regularly  pursued 
the  authority  of  such  tribunal,  board,  or  officer.'  We  have  already 
seen  that  the  writ  can  be  granted  only  where  the  jurisdiction  of  the  in- 


CERTIORARI.  707 

Another  element  of  uncertainty  has  been  brought  into 
the  law  affecting  the  writ  by  statutes  authorizing  its  issu- 
ance where  a  tribunal,  board,  or  officer,  has  acted  illegally. 
The  term  "  illegally,"  thus  used,  must  mean  very  much  the 
same  as  the  charge  that  the  tribunal  or  officer  has  "  not 
acted  according  to  law."  It  must  mean  some  act,  or  omis- 
sion to  act,  which  affects  the  validity  of  a  judgment  or 
other  proceeding,  and  not  some  error  committed  by  a' 
court  having  jurisdiction  which  would  render  the  judg- 
ment erroneous  but  not  void.^ 

ferior  tribunal  has  been  exceeded  ;  and,  taking  these  two  provisions  to- 
gether, it  is  clear  that  the  courts  are  confined  to  the  determination  of 
the  question  of  jurisdiction.  Beyond  this,  they  have  no  right  or  au- 
thority to  go ;  and  they  have  nothing  whatever  to  do  with  the  proceed- 
ings before  the  inferior  tribunal,  except  so  far  as  an  examination  of  such 
proceedings  is  necessary  for  the  determination  of  this  question.  Chief 
Justice  Murray  suggested,  in  People  ex  rel.  Church  v.  Hester  (6  Cal. 
679),  that  at  common  law  the  province  of  this  writ  is  more  ample  than 
under  our  statute,  as  it  is  not  confined  to  mere  questions  of  jurisdiction. 
While  we  fully  agree  that,  under  our  statute,  the  writ  has  no  other  ef- 
fect than  to  raise  the  mere  question  of  power,  a  careful  examination  of 
the  subject  has  satisfied  us  that  the  learned  judge  was  impressed  with  a 
very  serious  mistake  in  regard  to  the  functions  of  the  writ  at  common 
law.  We  think  it  is  well  settled  that  a  common-law  certiorari  tries  noth- 
ing but  the  jurisdiction,  and,  incidentally,  the  regularity  of  the  proceed- 
ings upon  which  the  jurisdiction  depends.  It  brings  up  no  issue  of  law 
or  fact  not  involved  in  the  question  of  jurisdiction.  Under  no  circum- 
stances can  the  review  be  extended  to  the  merits.  Upon  every  ques- 
tion, except  the  mere  question  of  power,  the  action  of  the  inferior  tri- 
bhnal  is  final  and  conclusive.  This  we  understand  to  be  the  settled 
doctrine,  both  in  England  and  in  this  country.  The  provisions  of  our 
statute  are  merely  in  affirmance  of  the  common  law.  The  nature  and 
effect  of  the  writ  remain  unchanged.  Its  functions  are  neither  enlarged 
nor  diminished,  and  the  rules  and  principles  which  govern  its  operation 
are  still  the  same."     People  v.  Board  of  Delegates,  14  Cal.  479,  499. 

1  Tiedt  V.  Carstensen,  61  la.  334 ;  16  N.  W.  Rep.  214 ;  Polk  Co.  t-.  City 
of  Des  Moines,  70  la.  351 ;  30  N.  W.  Rep.  614. 

"  Code,  section  3216,  provides  that  '  the  writ  of  certiorari  may  be 
granted  whenever  specially  authorized  by  law,  and  especially  in  all  cases 
where  an  inferior  tribunal,  board  or  officer  exercising  judicial  functions 
is  alleged  to  have  exceeded  his  proper  jurisdiction,  or  is  otherwise  act- 
ing illegally,  when,  in  the  judgment  of  the  superior  court,  there  is  no 
other  plain,  speedy,  and  adequate  remedy.'  The  proceeding  by  certi- 
orari is  intended  as  a  remedy  whereby  the  superior  court  may  inquire 
into  the  jurisdiction  of  the  inferior  tribunal  or  officer  and  determine 


708      COMMON  LAW,  EQUITY,  AXD  STATUTORY  JURISDICTION. 

The  operation  of  the  writ  has  been  so  limited,  in  some 
of  the  cases,  as  to  prevent  its  use  where  the  answer  of  a 
defendant  was  arbitrarily  stricken  out,  a  trial  denied  him, 
and  a  judgment  rendered  against  him  as  upon  a  default.^ 
But  such  a  proceeding  can  not  justly  be  regarded  as  a 
proceeding  according  to  law,  even  in  the  restricted  sense 
of  the  term ;  and  the  doctrine  announced  in  the  case  cited 

whether  the  tribunal  or  officer  '  is  acting  illegally.'  In  this  case  there 
is  no  question  of  jurisdiction.  We  are,  therefore,  only  to  inquire,  when 
is  a  tribunal  '  acting  illegally '  in  the  contemplation  of  this  statute  ? 
When  the  law  prescribes  proceedings  to  be  had  by  an  officer  or  tribunal 
in  cases  pending  before  them,  the  omission  of  such  proceedings  are  in 
violation  of  law,  and  the  court  or  officer  omitting  them  would,  there- 
fore, act  illegally.  In  a  word,  if  a  tribunal,  when  determining  matters 
before  it  which  are  within  its  jurisdiction,  proceeds  in  a  manner  con- 
trary to  law,  it  acts  illegally.  But  if  a  discretion  is  conferred  upon  the 
inferior  tribunal,  its  exercise  can  not  be  illegal.  If  it  be  clothed  with 
authority  to  decide  upon  facts  submitted  to  it,  the  decision  is  not  illegal, 
whatever  it  may  be,  if  the  subject-matter  and  the  parties  were  within 
its  jurisdiction  ;  for  the  law  intrusts  the  decision  to  the  discretion  of  the 
tribunal.  From  this  brief  statement  it  will  be  plainly  seen  that  the 
statute  does  not  contemplate  that  decisions  of  inferior  tribunals  upon 
questions  of  fact  may  be  reviewed  by  the  writ  of  certiorari.  The  dis- 
tinction between  erroneous  proceedings  which  are  termed  'illegalities' 
and  erroneous  decisions  of  fact  are  obvious.  See  Smith  v.  Board  of 
Sup'rs,  30  Iowa,  531;  McCollister  v.  Shuey,  24  Iowa,  362;  Jordan  v. 
Hayne,  36  Iowa,  9. 

"  Code,  section  3222,  provides  that  a  trial  in  a  proceeding  by  certiorari 
may  be  '  on  the  record,  proceedings,  and  facts  certified,'  the  return  to 
the  writ,  '  and  such  other  testimony,  oral  and  written,  as  either  party 
may  introduce  pertinent  to  the  issue.'  This  provision  is  not  intended 
to  extend  the  remedy  so  that  inquiry  may  be  made  into  matters  other 
than  the  jurisdiction  and  legality  of  the  proceeding  of  the  inferior  court. 
It  is  not  the  purpose  of  the  statute  to  change  the  office  of  a  certiorari,  so 
that  it  will  operate  as  an  appeal,  wherein  causes  may  be  tried  de  novo. 
The  scope  of  the  remedy  is  not  extended  ;  it  remains  restricted  to  ques- 
tions of  jurisdiction  and  the  regularity  of  the  proceedings  of  the  in- 
ferior court.  It  sometimes  happens  that  the  return  to  the  writ  of  ctr- 
tiorari  fails  to  show  the  facts  whereon  the  jurisdiction  of  the  inferior 
court  is  based,  or  the  regularity  or  irregularity  of  the  forms  of  proceed- 
ings brought  in  question.  That  all  the  facts  involved  in  the  case,  bear- 
ing upon  the  issues  in  the  proceeding  touching  the  jurisdiction  and  com- 
pliance with  the  law  in  the  case  reviewed,  may  be  considered,  the  stat- 
ute last  cited  provides  for  the  introduction  of  evidence  other  than  the 
return  to  the  writ."     Tiedt  v.  Carstensen,  61  la.  334 ;  16  N.  W.  Eep,  214. 

'  Sherer  v.  Superior  Court,  96  Cal.  653 ;  31  Pac.  Eep.  565. 


CERTIORARI.  709 

is  not  likely  to  find  favor  in  subsequent  decisions.  A  pro- 
ceeding by  which  a  party  is  arbitrarily,  and  without  right, 
denied  a  trial,  and  judgment  rendered  against  him  without 
a  hearing,  should  be  treated  as  an  act  in  excess  of  the 
jurisdiction  of  the  court,^  But  where  the  action  of  the 
court  in  striking  out  a  pleading  involves  an  investigation 
and  decision  of  a  question  of  law  or  fact  and  the  denial  of 
atrial  results  therefrom,  it  is  an  injury  resulting,  alone," 
from  an  erroneous  ruling  of  the  court,  made  in  the  orderly 
conduct  of  a  case,  and  not  an  excess  of  jurisdiction.  There- 
fore, under  the  rule  that  only  jurisdictional  questions  can 
be  raised  by  certiorari,  the  writ  would  not  lie  in  such  a 
case.     And  so  it  has  been  held.'' 

In  some  instances  a  distinction  is  made  between  cases 
where  there  is  no  other  available  remedy,  and  the  writ  is 
necessary  to  prevent  injustice,  and  those  cases  in  which  an 
appeal,  writ  of  error,  or  other  remedy  may  be  resorted  to, 
as  to  the  extent  to  which  the  writ  may  go,  it  being  held 
that,  in  the  former  class  of  cases,  the  writ  will  be  extended 
to  the  review  of  merely  erroneous  decisions,  while  in  the 
other  it  will  be  confined  to  what  is  acknowledged  to  be  its 
original  and  appropriate  oflice,  viz.,  to  determine  whether 
the  court  has  proceeded  within  its  jurisdiction.^ 

'  In  a  dissenting  opinion  rendered  by  Mr.  Justice  Paterson,  in  the 
case  cited,  it  is  said:  "  I  am  unable  to  agree  with  the  majority  in  this 
case.  When  it  appears  upon  the  face  of  the  record  that  judgment  has 
been  arbitrarily  rendered  in  any  case  against  a  party,  without  a  trial  or 
hearing,  as  if  he  were  in  default,  when  he  is  not,  the  action  of  the  court — 
it  matters  not  what  court  it  is — is  in  excess  of  its  jurisdiction.  In  my 
opinion,  its  judgment  is  absolutely  void,  subject  to  collateral  attack, 
and  ought  to  be  annulled  on  certiorari.''^  Sherer  v.  Superior  Court,  96 
Cal.  653 ;  31  Pac.  Eep.  565. 

^  History  Company  v.  Light,  97  Cal.  56;  31  Pac.  Rep.  627;  Buckley  r. 
Superior  Court,  96  Cal.  119;  31  Pac.  Rep.  8. 

^  People  V.  Betts,  55  N.  Y.  600.  This  case  contains  a  brief  review  of 
the  New  York  cases  up  to  the  time  of  its  decision,  and  a  brief  statement 
of  the  offices  of  the  writ  of  certiorari  as  announced  in  each  of  the  cases 
referred  to ;  which  furnishes  a  clear  exemplification  of  the  uncertainties 
that  have  grown  up  respecting  the  purposes  for  which  the  writ  may 
properly  be  used.  This  uncertainty  is  referred  to  in  an  earlier  New 
York  case,  in  which  it  is  said  : 

"  Doubtless  the  same  question  is  again  presented  as  upon  the  original 


VI 0      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

The  common  law  writ  is  given  a  broader  scope  in  many 
of  the  cases  and  made  to  extend  to  the  review  of  errors  of 
law  and  even  to  a  consideration  of  the  evidence.^  A  dis- 
tinction is  made,  in  this  respect,  however,  in  some  of  the 
cases  between  a  court  and  a  quasi  judicial  body  such  as  a 
town  board,  it  being  held  that  in  case  of  the  latter  the 
writ  may  be  extended  to  the  correction  of  errors  and  ir- 
regularities, but  not  in  case  of  a  court,^  In  others  the 
distinction  is  made  between  courts  which  proceed  sum- 
marily, and  those  which  proceed  according  to  the  course 
of  the  common  law.^     And  in  either  case  the  power  of 

appeal,  in  relation  to  the  form  of  the  remedy.  The  decisions  of  the 
courts,  in  relation  to  the  office  of  a  common  law  certiorari  are  bo  con- 
flicting that  it  is  quite  impossible  to  say  that  any  settled  rule  has  ever 
been  established  in  this  state  which  has  not  been  subsequently  departed 
from.  It  is  unnecessary  to  cite  the  cases,  but  I  will  observe  that,  ac- 
cording to  the  decisions  in  this  court,  such  a  writ  will  bring  up  so  much 
of  the  evidence  as  is  necessary  to  present  the  question  of  law  upon 
which  the  relator  relies  to  avoid  the  determination  of  the  inferior  tribu- 
nal. (People  V.  Goodwin,  1  Seld.  568  ;  Albany  Northern  Railroad  Com- 
pany V.  Brownell,  24  N.  Y.  345.)"  Baldwin  v.  City  of  Buffalo,  35  N.  Y. 
375,  380. 

'  Milwaukee  Iron  Co.  v.  Shubel,  29  Wis.  444,  447;  9  Am.  Rep.  591; 
Dryden  v.  Swinburne,  20  W.  Va.  89,  106 ;  State  v.  Dodge  County,  56  Wis. 
79  ;  13  N.  W.  Rep.  680 ;  State  v.  Whitford,  54  Wis.  150;  11  N.  W.  Rep. 
424 ;  Baldwin  v.  City  of  BuflFalo.  35  N.  Y.  375,  380 ;  Swift  v.  City  of 
Poughkeepsie,  37  N.  Y.  511,  516;  People  v.  Assessors,  40  N.  Y.  154;  Al- 
derson  v.  Commissioners,  32  W.  Va.  454 ;  9  S.  E.  Rep.  863. 

*  State  V.  Whitford.  54  Wis.  150;  11  N.  W.  Rep.  424;  People  v.  Board 
ot  Police,  72  N.  Y.  415. 

'  "  The  general  rule  is,  that  upon  certiorari  to  an  inferior  court,  the 
court  from  which  the  writ  issues,  will  only  inquire  into  errors  and  de- 
fects which  go  to  the  jurisdiction  of  the  court  below,  and  for  all  other 
errors  or  irregularities,  the  party  must  resort  to  his  remedy  by  appeal 
or  writ  of  error.  This  rule  has  been  frequently  applied  when  the  writ 
is  sent  to  a  justice  of  the  peace,  but  it  is  equally  applicable  to  any  case 
where  the  writ  issues  to  a  court  which  proceeds  according  to  the  course 
of  the  common  law,  whether  of  record  or  otherwise.  Hauser  v.  The 
State,  33  Wis.  680.  But  in  this  state  if  the  inferior  tribunal  proceeds  in 
a  summary  manner,  and  not  according  to  the  course  of  the  common 
law,  and  there  is  no  remedy  by  appeal  or  writ  of  error,  then  the  courts 
will  consider  other  than  jurisdictional  questions.  Cunningham  v. 
Squires,  2  W.  Va.  422 ;  Dryden  v.  Swinburne.  20  Id.  89.  However,  the 
principle  that  if  the  inferior  court  had  jurisdiction,  mere  errors  in  the 
exercise  of  that  jurisdiction  can  not  be  corrected  by  certiorari,  where 


CERTIORARI.  711 

the  court  of  errors  is  held  not  to  extend  to  the  determi- 
nation of  the  weight  of  the  evidence.^ 

As  stated  above  the  writ  is  usually  denied  where  there 
is  a  speedy  and  adequate  remedy  by  appeal,  writ  of 
error  or  other  ordinary  proceeding.^  But  the  right  to  an 
appeal  is  not  an  absolute  bar  to  the  writ  in  all  eases.^ 
It  is  held  that  the  writ  will  lie,  unless  taken  away  by 
the  express  words  of  the  statute,  not  withstanding  an. 
appeal  is  allowed,*  and  in  some  of  the  states,  in  certain 
cases,  appeal  and  certiorari  are  concurrent  remedies.  But 
under  a  statute  authorizing  the  writ  only,  where  there  is 
no  speedy  and  adequate  remedy  by  appeal  or  writ  of  er- 
ror, the  writ  will  be  denied,  where  the  right  of  appeal 
exists,  although  the  court  to  which  the  application  is  made 
is  given  general  jurisdiction  to  issue  the  writ.^ 

Sometimes  the  writ  is  allowed  to  serve  the  purpose  of 
a  writ  of  error  where  the  latter  can  not  be  resorted  to  and 
is  used  for  the  correction  of  errors  of  law  f  or  where,  in  case 
an  appeal  or  writ  of  error  is  allowed,  the  right  has  been  lost 
without  the  fault  of  the  applicant  for  the  writ,^  but  not 

there  is  any  other  available  mode  of  redress,  prevails  very  extensively. 
Doolittle  V.  Galena  R.  R.  Co.,  14  111.  381 ;  Owens  v.  State,  27  Wis.  456." 
Poe  V.  Machine  Works,  24  W.  Va.  517,  520. 

1  State  V.  Whitford,  54  Wis.  150;  11  N.  W.  Rep.  424;  State  v.  Dodge 
County,  56  Wis.  79;  1.3  N.  W.  Rep.  680;  People  v.  Board  of  Police,  69 
N.  Y.  408;  People  v.  Board  of  Police,  72  N.  Y.  415;  De  Rochebrune  v. 
Southeimer,  12  Minn.  78. 

^  Duggen  V.  McGruder,  12  A.m.  Dec.  531,  note ;  Alabama  G.  S.  R.  Co. 
V.  Christian,  82  Ala.  307;  1  Sou.  Rep.  121. 

^  Duggen  V.  McGruder,  12  Am.  Dec.  531,  note. 

*  New  Jersey  R.  R.  &  Tr.  Co.  v.  Suydam,  17  N.  J.  Law,  25,  40. 

*  People  V.  Board  of  Supervisors,  2  N.  Y.  Supl.  555. 

®  People  V.  Court  of  Sessions,  45  Hun,  54;  Case  of  Philadelphia,  etc., 
R.  R.  Co.,  6  Whar.  (Pa.)  25;  36  Am.  Dec.  202;  Dryden  v.  Swinburne,  20 
AV.  Va.  89,  105 ;  3  Am.  &  Eng.  Enc.  of  Law,  61 ;  Lessee  of  Walpole  v. 
Ink,  9  Ohio,  142 ;  People  v.  Board  of  Police,  69  N.  Y.  408 ;  Bostick  v. 
Palmer,  79  Ga.  680;  4  S.  E.  Rep.  319;  State  v.  Mayor,  32  N.  J.  Law,  365 ; 
Farmington  River,  etc.,  Co.,  v.  County  Commissioners,  112  Mass.  206, 
212  ;  Tewksbury  v.  County  Commissioners,  117  Mass.  563. 

'  Briggs  V.  Jervis,  98  N.  Car.  454 ;  4  S.  E.  Rep.  631 ;  Burgett  v.  Apperson, 
52  Ark.  213;  12  S.  W.  Rep.  559  ;  Callanan  v.  Lewis,  79  la.  452 ;  44  X.  W. 
Rep.  892. 


712      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

where  the  loss  of  an  appeal  is  brought  about  by  the  laches 
of  the  applicant  for  the  writ  and  not  by  any  act  of  the  op- 
posite party ,^  except  upon  such  a  showing  as  would  be  suf- 
ficient to  relieve  a  party  from  the  consequence  of  his  own 
delay.^ 

In  some  of  the  states  a  party  has  his  choice  of  remedies 
either  to  appeal  for  a  new  trial  or  prosecute  a  writ  of 
certiorari  to  review  such  questions  of  law  as  may  be  pre- 
sented by  the  writ,^  in  either  of  which  cases  it  becomes  a 
substitute  for  the  writ  of  error  or  appeal,  as  the  case  may 
be,  and  is  essentially  the  same,  and  serves  the  same  pur- 
pose, and  will  raise  the  same  questions  as  might  properly 
be  raised  by  the  proceeding  for  which  it  is  thus  made  a 
substitute.* 

In  other  states  it  is  expressly  held  that  the  writ  can  not 
be  used  as  a  substitute  for  an  appeal  where  the  time  for 
taking  the  appeal  has  been  suffered  to  elapse,^  nor  will  the 
writ  be  allowed  as  a  substitute  for  an  appeal  from  an  in- 
terlocutory order  where  an  appeal  from  such  an  order  is  not 
allowed.® 

At  common  law  the  writ  issued  from  the  court  of 
chancery,  or  from  the  king's  bench,  or  common  pleas  f  now 
its  issuance  is  usually  authorized  by  statute  and  its  en- 
forcement specially  provided  for.  These  statutory  pro- 
visions, varying  in  their  language,  and  the  different  con- 
structions placed  upon  them  by  the  courts,  have  led  to 

^  Bowen  v.  Fox,  99  N.  Car.  127  ;  5  S.  E.  Rep.  437 ;  Cox  v.  Pruett,  109  N. 
Car.  487;  13  S.  E.  Rep.  917. 

2  Long  V.  Ohio  River  Co.,  35  W.  Va.  333 ;  13  S.  E.  Rep.  1010. 

3  Barclay  v.  Brabston,  49  N.  .J.  L.  629 ;  9  Atl.  Rep.  769. 

*  Case  iJ  Philadelphia,  etc.,  R.  R.  Co.,  6  Whar.  (Pa.)  25;  36  Am.  Dec. 
202 ;  Dryden  v.  Swinburne,  20  W.  Va.  89,  105  ;  Lessee  of  Walpole  v.  Ink, 
9  Ohio,  142. 

^  Faut  V.  Mason,  47  Cal.  7 ;  McCue  v.  Superior  Court,  71  Cal.  545 ;  12 
Pac.  Rep.  615;  Stuttmeister  v.  Superior  Court,  71  Cal.  322;  In  re  Stutt- 
meister,  12  Pac.  Rep.  270;  Lewis  v.  Gilbert,  5  Wash.  St.  534;  32  Pac. 
Rep.  459 ;  Poe  v.  Machine  Works,  24  W.  Va.  517 ;  Tomlinson  v.  Board  of 
Equalization,  88  Tenn.  1 ;   12  S.  W.  Rep.  414. 

«  State  V.  Georgia  Co.,  109  N.  Car.  310 ;  13  S.  E.  Rep.  861. 

^  Duggen  V.  McGruder,  Walker  (Miss.),  112  ;  12  Am.  Dec.  527,  529, 
note. 


CERTIORARI.  713 

great  confusion  as  to  the  office  of  the  writ  and  the  extent 
to  which  it  may  be  used.  In  some  of  the  states  the  writ 
remains  as  it  was  at  common  hxw  although  defined  ex- 
pressly by  statute;^  in  others  the  inquiry  may  go  to  the 
jurisdiction  of  the  court  and  the  vaHdity  of  the  judgment 
respecting  the  regularity,  or  form,  of  the  proceedings, 
whether  in  accordance  with  the  forms  of  law  or  not  ^  in 
some  special  provision  is  made  for  the  reviewing  of  assess- 
ments for  taxation ;  and  in  some  questions  of  fact,  not 
afiecting  the  jurisdiction  of  the  court,  alone,  may  be  de- 
termined under  the  writ.^ 

'  People  V.  Board  of  Delegates,  14  Cal.  479,  500. 

2  State  V.  Rightor,  39  La.  Ann.  619 ;  2  Sou.  Rep.  385 ;  Hyslop  v.  Finch, 
99  111.  171 ;  Donahue  v.  County  of  Will,  100  111.  94  ;  Blair  v.  Senuott,  134 
111.  78 ;  24  N.  E.  Rep.  969. 

3  Dryden  v.  Swinburne,  20  W.  Va.  89,  105  ;  People  v.  Board  of  Police, 
72  N.  Y.  415 ;  People  v.  City  of  Brooklyn,  106  N.  Y.  64 ;  13  N.  E.  Rep.  28 ; 
Alderson  v.  Commissioners,  32  W.  Va.  454 ;  9  S.  E.  Rep.  863. 

"According  to  the  English  practice,  a  writ  of  certiorari  might  issue 
as  well  before  as  after  the  decision  of  the  case  in  the  inferior  court,  and 
w^hen  sustained,  the  superior  court  commenced  de  novo  and  tried  the 
case  in  the  superior  court  without  regard  to  what  had  been  done  in  the 
inferior  court.  Thus  the  relief  granted  was  in  England  much  more 
comprehensive  than  the  relief  granted  on  a  writ  of  error,  which  was 
confined  to  the  correction  of  those  errors  of  law  which  entered  into  and 
tainted  the  proceedings  in  the  inferior  court.  We  decided  in  this  case, 
when  formerly  before  us,  in  15  West  Ya.,  p.  2-35,  that  this  English  prac- 
tice was  not  the  practice  in  this  state  and  ought  not  to  be  followed ;  and, 
though  not  then  decided,  the  inference  to  be  drawn  from  the  views 
then  expressed  by  this  court  was,  that  the  practice  in  this  state  should 
be  in  cases  brought  before  a  superior  tribunal  by  writ  of  certiorari  for 
the  correction  of  errors  in  a  final  decision  of  an  inferior  tribunal  simi- 
lar to  the  practice,  when  cases  were  brought  before  a  superior  court  by 
writ  of  error.  We  expressly  decided  that  the  judgment  in  the  superior 
court,  when  the  inferior  court  was  rendered,  should  be  alike ;  that  is, 
in  both  cases,  the  superior  court  in  such  reversal  should  enter  up 
such  judgment,  as  the  inferior  court  should  have  entered  up,  and,  when 
necessary,  remand  the  case  to  the  inferior  court  for  further  proceedings. 
The  errors,  which  in  this  state  are  corrected  on  a  writ  of  error,  are  gen- 
erally errors  of  law  ;  and  the  juries  and  inferior  tribunals  are  as  a  gen- 
eral rule  held  to  be  the  sole  judges  of  the  weight  of  evidence,  and  their 
decisions  on  an  issue  of  fact  is  rarely  reversed  or  interfered  with  by 
the  appellate  court  on  a  writ  of  error.  It  is  true  that  the  power  in  this 
state  exists  to  grant  a  new  trial  on  a  writ  of  error,  because  the  verdict 
is  so  contrary  to  the  weight  of  evidence  as  to  shock  the  conscience  ;  and 


714        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

The  liberal  doctrine  declared  in  the  cases  liolding  that 
the  writ  of  certiorari  is  even  more  comprehensive  in  its 
scope  than  a  writ  of  error  makes  the  former  a  substitute 

the  appellate  court  in  this  state  probably  exercises  this  power  thus,  at 
it  were,  in  a  qualified  manner,  to  review  what  seems  to  be  a  question  of 
fact  to  an  extent  to  w'hich  it  would  not  be  exercised  in  some  states — 
these  states  or  some  at  least  of  them  never  reviewing  a  question  of  fact 
on  a  writ  of  error. 

"  Bearing  in  mind  this  diversity  of  practice  in  the  diflFerent  states,  we 
may,  I  think,  deduce  from  the  decisions  in  certiorari  cases,  that  the  ap- 
pellate court  in  cases  brought  before  them  by  certiorari  may  review  and 
correct  the  errors  of  the  inferior  court,  not  only  when  these  errors  are 
errors  on  questions  of  jurisdiction,  power,  and  authority  of  the  inferior 
tribunal,  or  on  questions  of  the  regularity  of  their  proceedings,  but  also 
when  there  were  any  errors  of  law  in  their  proceedings  or  any  action 
taken  by  them  on  erroneous  principles  or  in  the  absence  of  all  evidence 
to  justify  it.  In  short,  the  appellate  court  may  review  and  correct  any 
error  of  the  inferior  court,  when  the  case  after  its  final  decision  is 
brought  before  it  by  writ  of  certiorari,  whenever  the  error  is  of  such  a 
character,  as  that  the  appellate  court  would  review  and  correct  a  similar 
error,  were  the  case  brought  before  it  by  writ  of  error.  To  sustain  this 
position,  we  may  refer  to  the  following,  among  many  other  cases:  Starr 
et  al.  V.  Trustees,  etc.,  6  Wend.  564 ;  Baldwin  v.  Calkins,  10  Wend.  167 ;  State 
V.  Mayor,  32  N.  J.  L.  367  (3d  Vroom.)  ;  Grsecen  v.  Allen,  14  N.  J.  L.  74 
(2  J.  S.  Green);  Hayward,  Petitioner,  etc.,  10  Pick.  358;  Nightingale, 
Petitioner,  etc.,  11  Pick.  168;  Farmington  River  Water  Power  Co.  v. 
County  Commissioners,  112  Mass.  206;  Hyde  v.  Nelson,  11  Mich.  357; 
De  Rochebrune  v.  Southeimer,  12  Minn.  78 ;  Frankfort  v.  County  Com- 
missioners, 40  Me.  391 ;  Lapan  v.  County  Commissioners,  65  Me.  160: 
People  V.  Board  of  Police,  69  N.  Y.  411 ;  People  v.  Smith,  45  N.  Y.  776; 
City  of  St.  Paul  v.  Marvin,  16  Minn.  104;  The  Minn.  C.  R.  R.  Co.  v.  Mc- 
Namara,  13  Minn.  509. 

"  It  is  true  there  are  some  decisions  that  upon  certiorari  to  an  inferior 
court  the  appellate  court  will  only  inquire  into  errors  or  defects,  which 
go  to  the  jurisdiction  of  the  court  below.  See  Hauser  r.  The  State,  33 
Wis.  680.  But  even  in  Wisconsin,  if  there  be  no  remedy  by  appeal, 
the  courts  will  consider  other  than  jurisdictional  questions,  Milwaukee 
Iron  Co.  V.  Schubel,  29  Wis.  444;  and  it  is  very  generally  elsewhere 
held  that,  when  there  is  any  other  available  redress,  a  certiorari  will  not 
issue  even  to  correct  errors  in  the  exercise  of  jurisdiction.  In  New  York 
at  one  time  it  was  held  that  the  office  of  the  writ  of  certiorari  was  only 
to  bring  up  jurisdictional  errors.  See  People  v.  Commissioners  of  High- 
ways, 30  N.  Y.  72.  But  it  may  be  regarded  probably  as  settled  now  in 
New  York,  though  their  decisions  have  been  very  contradictory,  that, 
when  there  is  no  other  available  remedy,  any  law  question  may  be  con- 
sidered and  corrected  on  certiorari    though  it  be  not  jurisdictional  in  its 


CERTIORARI.  715 

for  both  the  latter  writ  and  an  appeal.  If  this  be  the 
correct  doctrine,  all  statutes  providing  for  appeals  are 
purely  superfluous,  as  the  right  given  by  such  statutes  al- 
ready exists  without  limitation  or  restraint.^ 

If,  therefore,  the  right  of  appeal  is  given  by  statute  in 
one  class  of  cases  and  withheld  in  another,  because  it  is 
believed  the  right  should  not  be  allowed  in  the  latter 
class,  the  courts  supply  what  the  legislature  has  purposely- 
withheld.^  There  are  very  few  cases  that  have  gone 
to  this  extent,  and  it  is  not  likely  that  the  number  will 
increase.  The  doctrine  has  been  modified  in  later  cases 
by  the  same  court  in  which  the  power  to  use  the  writ, 
even  as  a  substitute  for  a  writ  of  error,  is  confined  to 
the  review  of  proceedings  of  courts  acting  in  a  summary 
manner  and  not  according  to  the  course  of  the  common 
law.^ 

But  still  later  decisions  have  again  broadened  the  scope 
of  the  writ,  as  the  result,  it  is  believed,  of  statutory  pro- 
character.  People  V.  Assessors,  40  N.  Y.  154 ;  People  v.  Supervisors,  etc., 
51  N.  Y.  442 ;  People  v.  Allen,  52  N.  Y.  538. 

"  Upon  a  review  of  the  authorities,  I  conclude  that  a  writ  of  certiorari 
issued  by  a  superior  court  after  final  judgment  of  the  inferior  court 
brings  up  for  review  and  correction  not  only  errors  and  defects,  which 
affect  the  jurisdiction  of  the  inferior  tribunal,  but  all  errors  of  law  in 
the  record,  including  all  action  taken  on  evidence  before  it  and  on  er- 
roneous principles,  or  any  action  taken  by  it  in  the  absence  of  all  evi- 
dence to  justify  such  action.  This  conclusion  is  sustained  both  by  rea- 
son and  the  overwhelming  weight  of  authority.  It  seems  to  me  abso- 
lutely necessary  that  the  principle  stated  should  be  acted  upon,  if  we 
would  not  render  of  but  little  value  a  common-law  writ,  which  was  de- 
signed to  afibrd  redress,  when  wrongs  were  committed  by  inferior  courts 
from  want  of  a  correct  knowledge  of  legal  principles,  and  when  the 
common  law  furnished  no  other  mode  of  redress.  As  it  is,  when  there 
are  errors  in  the  record  of  the  case,  which  are  to  be  corrected,  it  be- 
comes necessary  to  determine,  in  case  brought  up  by  certiorari  for  re- 
view, what  constitutes  the  record,  and  especially  do  bills  of  exceptions, 
which  have  been  signed,  sealed,  and  made  a  part  of  the  record,  consti- 
tute a  part  of  it,  so  as  to  authorize  the  superior  court  to  look  at  them." 
Dryden  v.  Swinburne,  20  W.  Va.  89,  105. 

1  State  V.  Perrault,  41  La.  Ann.  179 ;  6  Sou.  Rep.  18. 

2  Tomlinson  r.  Board  of  Equalization,  88  Tenn.  1;  12  S.  W.  Rep.  414. 
'  Poe  r.  Machine  Works,  24  W.  Va.  517. 


716       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION^. 

visions  intended  to  give  the  courts  more  extended  powers 
under  it.^ 

It  is  held  that  where  it  is  provided  that  the  judgment 
of  a  court  shall  be  final  a  writ  of  certiorari  will  not  lie  for 
the  correction  of  errors,  as  such  a  statute  bars  the  writ 
so  far  as  it  can  be  used  for  such  a  purpose,  as  well  as  an 
appeal  or  writ  of  error.^ 

It  is  held  that  the  writ  may  be  used  to  annul  an  order 
of  dismissal  made  upon  the  ground  that  the  court  making 
the  order  has  not  jurisdiction  of  the  action  and  to  rein- 
state the  case.^  But  this  is  certainly  a  very  peculiar  ap- 
plication of  such  a  writ.  In  such  a  case  mandamus  to  com- 
pel the  court  having  jurisdiction  to  proceed  with  the  ac- 
tion is  the  most  appropriate  remedy  and  the  one  usually 
applied.* 

It  is  true  that  the  right  to  compel  a  court  to  act  where 
it  has  decided  that  it  has  not  jurisdiction,  and  refuses  to 
proceed,  upon  that  ground,  has  been  disputed.*  But  if 
the  writ  of  mandamus  will  not  lie  under  such  circumstances 
certainly  certiorari  will  not  in  a  state  where  the  latter  is 
uniformly  held  to  be  a  purely  jurisdictional  writ.  If  the 
decision  of  the  lower  court  in  dismissing  the  action  is  an 
error,  only,  in  the  one  case,  and  held  to  be  reviewable 
only  by  writ  of  error  or  appeal,  it  is  in  the  other.'  And  in. 
any  event  the  remedy  by  certiorari  can  only  go  to  the  ex- 
tent of  annulling  the  order  and  can  not  be  used  to  require 
the  reinstatement  of  the  case  or  any  other  affirmative  ac- 
tion by  the  lower  court.® 

A  writ,  by  the  same  name,  is  allowed  to  bring  up  a  part 
of  the  record  upon  a  showing  of  diminution  of  the  record 

'  Alderson  v.  Commissioners,  32  W.  Ya.  454 ;  9  S.  E.  Rep.  863  ;  Long 
V.  Ohio  River  Co.,  35  W.  Va.  333;  13  S.  E.  Rep.  1010. 

•-'  People  V.  Betts,  55  N.  Y.  600. 

3  Hall  V.  Superior  Court,  71  Cal.  550;  12  Pac.  Rep.  672  ;  Carlson  v.  Su- 
perior Court,  70  Cal.  628 ;  11  Pac.  Rep.  788. 

*  Ante,  sec.  80. 

*  This  inconsistency  in  the  California  cases  has  been  removed  by  the 
later  decisions  by  which  the  cases  cited  have  been  overruled.  Buckley 
V.  Superior  Court,  96  Cal.  119 ;  31  Pac.  Rep.  8 ;  History  Company  v. 
Light,  97  Cal.  56;  31  Pac.  Rep.  627. 

*  People  V.  Supervisors,  51  N.  Y.  442. 


CERTIORARI.  717 

where  the  action  is  pending  in  a  superior  court  on  appeal 
or  writ  of  error/  in  which  case  it  is  an  auxiliary  writ  in 
aid  of  the  appellate  jurisdiction  of  the  court  of  errors. 
In  some  of  the  states  the  writ  is  abolished  and  other  rem- 
edies provided  to  take  its  place.^ 

The  writ  is  frequently  used  in  connection  with  the  writ 
of  habeas  corpus  to  bring  up  the  record  of  proceedings  which 
are  the  basis  of  the  imprisonment,  for  the  inspection  of 
the  court,  with  a  view  to  determine  whether  the  party  un- 
der detention  is  legally  in  custody  or  not.* 

There  are  bills  of  certiorari  also  in  the  chancery  prac- 
tice, the  object  of  which  is  to  remove  a  suit  from  an  in- 
ferior to  a  superior  court,  but  it  is  not  now  in  use.*  And 
it  is  generally  held  that  certiorari  is  not  a  proper  mode  of 
reviewing  a  proceeding  in  equity.^ 

Under  this  anomalous  state  of  the  law  in  the  different 
states  it  may  almost  be  said  that  the  writ  of  certiorari^  as 
a  distinctive  writ,  has  ceased  to  exist. 

The  writ  brings  up  for  the  review  of  the  higher  court 
the  entire  record  of  the  proceedings  had  before  the  inferior 
tribunal,  officer,  or  board,  which,  under  the  practice  in 
most  of  the  states,  constitutes  the  return  to  the  writ.® 

The  general  rule  is  that  the  question  to  be  determined 
must  be  tried  by  the  record,^  that  the  record  is  conclu- 

1  Bergen  v.  Kiggs,  40  111.  61 ;  89  Am.  Dec.  335  ;  Elliott's  App.  Pro.,  sec. 
216. 

2  Ex  parte  Collier,  6  Ohio  St.  55,  60. 

^  State  V.  Neel,  48  Ark.  283;  3  S.  W.  Rep.  631  ;  Grieb  r.  Kuttner,  135 
Pa.  St.  281  ;  19  Atl.  Rep.  1040;  Ex  parte  Virginia,  100  U.  S.  339. 

*  Story's  Eq.  PL,  sec.  298. 

5  Gilliland  v.  Sellers,  2  Ohio  St.  223 ;  Galloway  v.  Stophlet,  1  Ohio  St. 
434. 

«  Fraser  v.  Freelon,  53  Cal.  644;  Donahue  v.  County  of  Will,  100  111. 
94;  State  v.  Washoe  Co.,  7  Nev.  83;  Drainage  Commissioners  v.  Giffin, 
134  111.  330 ;  25  X.  E.  Rep.  995. 

'  Cassidy  v.  Millerick,  52  Wis.  379 ;  9  N.  W.  Rep.  165 ;  Smith  v.  Bahr, 
62  Wis.  244;  22  N.  W.  Rep.  438;  Frazer  v.  Freelon,  53  Cal.  644 ;  Grieb 
V.  Kuttner,  135  Pa.  St.  281 ;  19  Atl.  Rep.  1040;  Donahue  v.  County  of 
Will.,  100  111.  94  ;  Blair  v.  Sennott,  134  111.  78 ;  24  N.  E.  Rep.  969 ;  Hyslop 
V.  Finch,  99  111.  171 ;  Miller  v.  Trustees,  88  111.  26  ;  Alexander  v.  Archer, 
21  Nev.  22  ;  24  Pac.  Rep.  373 ;  Hann.  &  St.  Joe  R.  R.  Co.  v.  State  Board, 


718      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

sive/  and  that  questions  of  fact  can  not  be  tried  under  the 
writ.^  But  if  the  jurisdiction  of  the  court  depends  upon 
the  evidence  taken  before  it,  or  other  documents,  the  evi- 
dence or  such  documents  is  a  necessary  part  of  the  record, 
must  be  certified  up,  and  may  be  considered  by  the  review- 
ing court.^  And  in  some  of  the  states  the  power  to  deter- 
mine the  weight,  or  sufiiciency,  of  the  evidence  in  certain 
cases  is  given  by  statute,* 

A  distinction  is  made  in  some  of  the  cases  between  tlie 
proceedings  of  courts  and  those  of  boards  and  officers, 
not  strictly  of  a  judicial  character,  and  out  of  the  course 
of  the  common  law,  it  being  held  that  in  case  of  the  former 
the  evidence  can  not  be  examined  to  determine  whether 
the  court  had  jurisdiction  or  not,  but  in  case  of  the  latter 
the  evidence  may  be  looked  to  for  that  purpose.^  And  in 
some  of  the  states  evidence  may  be  taken  to  determine 
w^iether  the  court  had  jurisdiction  or  not.^  And  under  a 
practice  which  permits  a  trial  de  novo  in  the  higher  court,^ 
the  trial  is  not  by  the  record. 

In  some  of  the  states  the  hearing  is  not  confined  to  the 

64  Mo.  294 ;  In  re  Chestnut  Street,  118  Pa.  St.  593 ;  12  Atl.  Rep.  585 ; 
Drainage  Commissioners  v.  Giffin,  134  111.  330;  25  N.  E.  Rep.  995; 
Wilmington  S.  S.  Co.  v.  Haas,  151  Pa.  St.  113 ;  25  Atl.  Rep.  85. 

^  Duggen  V.  McGruder,  12  Am.  Dec.  536,  note ;  Cassidy  v.  Millerick,  52 
Wis.  379;  9  N.  W.  Rep.  165;  22  N.  W.  Rep.  438;  Alexander  v.  Archer, 
21  Nev.  22;  24  Pac.  Rep.  373;  People  v.  Fire  Commissioners,  73  N.  Y. 
437 ;  Rutland  v.  County  Commissioners,  37  Mass.  71 ;  Hann.  &  St.  Joe 
R.  R.  Co.  V.  State  Board,  64  Mo.  294;  Appeal  of  Long,  134  Pa.  St.  641; 
19  Atl.  Rep.  806;  Healy  v.  Kneeland,  48  Wis.  497 ;  4  N.  W.  Rep.  586. 

2  Jackson  v.  People,  9  Mich.  Ill ;  77  Am.  Dec.  491 ;  Cassidy  v.  Miller- 
ick, 52  Wis.  379;  9  N.  W.  Rep.  165;  State  v.  Mayor,  32  N.  J.  Law,  365; 
Stewart  v.  Patterson,  14  N.  J.  Law,  141  ;  Farmington  River,  etc.,  Co.  i'. 
County  Commissioners,  112  Mass.  206,  212;  Tewksbury  v.  County  Com- 
missioners, 117  Mass.  563;  Hayward,  Petitioner,  27  Mass.  359;  Carver  w. 
Chapel,  70  Mich.  49;  37  N.  W.  Rep.  879;  Commonwealth  v.  Gillespie, 
146  Pa.  St.  546 ;  23  Atl.  Rep.  393 ;  AVilmington  S.  S.  Co.  v.  Haas,  151  Pa. 
St.  113 ;  25  Atl.  Rep.  85. 

^  People  V.  Board  of  Delegates,  14  Cal.  479 ;  People  v.  Goodwin,  5  N. 
Y.  568;  State  v.  Washoe  Co.,  7  Nev.  83. 

*  People  V.  French,  119  N.  Y.  502 ;  23  N.  E.  Rep.  1061. 

*  Gallon  V.  Sternberg,  38  Wis.  539. 

*  Lonsdale  Co.  v.  Board,  etc.,  25  Atl.  Rep.  655. 


CERTIORARI.  719 

matters  presented  by  the  return,  but  extends  to  papers 
upon  which  the  writ  was  granted  as  provided  by  statute/ 
And  the  extent  to  which  the  courts  may  go  under  the 
statutes  of  some  of  the  states,  and  the  difl'erences  in  such 
statutes,  in  this  respect,  render  it  impossible  to  lay  down 
any  rule  with  respect  to  the  power  of  the  courts  to  go 
outside  of  the  record  in  the  determination  of  questions 
presented  by  the  writ.  Where  the  writ  is  allowed  as  a 
substitute  for  a  writ  of  error,  there  is  some  reasonable 
certainty  as  to  the  scope  of  the  investigation  and  the 
conclusiveness  of  the  record;^  but  under  some  of  the 
statutes  the  powers  of  the  courts  seem  to  be  so  nearly 
unlimited  as  to  be  beyond  definition.^  The  record  can 
not  be  amended  in  the  higher  court,*  but  may  be  amended 
in  the  court  below  and  brought  up  as  amended.*  It 
is  not  a  writ  of  right  except  when  issued  at  the  in- 
stance of  the  king  or  the  people,  unless  made  so  by 
statute;^  can  not  be  issued  by  the  clerk  without  an 
order  of  court  ;^  runs  only  to  courts,  tribunals,  or  officers, 
exercising  judicial  or  ^wasi  judicial  functions  ;^  and  the  act 
to  be  reviewed  must  be  judicial  in  its  nature,^  and  not 
ministerial,^   or    legislative."^     It    is    held,    however,   that 

1  People  V.  City  of  Brooklyn,  106  N.  Y.  64 ;  12  N.  E.  Rep.  641. 

^  Ante,  sec.  85. 

^  Duggen  V.  McGruder,  12  Am.  Dec.  532,  note. 

*  Bergen  v.  Riggs,  40  111.  61  ;  89  Am.  Dec.  335. 

^  3  Am.  and  Eng.  Enc.  of  Law,  62;  Matter  of  Lantis,  9  Mich.  324;  80 
Am.  Dec.  85;  Duggen  v.  McGruder,  Walker  (Miss.),  112;  12  Am.  Dec. 
527,  530,  note  ;  Gaither  v.  Watkins,  66  Md.  576  ;  8  Atl.  Rep.  464 ;  Burgett 
V.  Apperson,  52  Ark.  213;  12  S.  W.  Rep.  559. 

«  Gaither  i-.  Watkins,  66  Md.  576;  8  Atl.  Rep.  464. 

'  Duggen  V.  McGruder,  12  Am.  Dec.  535,  note ;  Mayor  v.  Morgan,  7 
Martin  N.  S.  (La.),  1 ;  18  Am.  Dec.  232,  236,  note;  In  re  Saline  Co.  Sub., 
45  Mo.  52;  100  Am.  Dec.  337;  Spring  Valley  Water  Works  v.  Bryant, 
52  Cal.  132;  People  v.  Hester,  6  Cal.  680;  Drainage  Commissioners  v. 
Giffin,  134  111.  330 ;  25  N.  E.  Rep.  995. 

« In  re  Saline  Co.  Sub.,  45  Mo.  52;  100  Am.  Dec.  337 ;  People  v.  Bush, 
40  Cal.  344;  Spring  Valley  Water  Works  v.  Bryant,  52  Cal.  132. 

»  People  V.  Bush,  40  Cal.  344. 

'"  Mayor  r.  Morgan,  18  Am.  Dec,  236,  note ;  Spring  Valley  Water 
Works  r.  Bryant,  52  Cal.  132 ;    Lemont  v.  County  Commissioners,  39 


720      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

the  acts  of  a  municipal  corporation  may  be  reviewed  by 
the  writ,  whether  such  acts   are  judicial  or  legislative;^ 

Minn.  385;  40  N.  W.  Rep.  359;  Moode  v.  Board  of  County  Commission- 
ers, 43  Minn.  312  ;  45  N.  W.  Rep.  435. 

1  City  of  Camden  v.  Mulford,  26  N.  J.  Law,  49. 

"  In  the  case  of  Tucker  v.  The  Freeholders  of  Burlington,  Saxton,  287, 
Vroom,  Chancellor,  said  :  '  The  principle  is  universal,  that  wherever  the 
rights  of  individuals  are  invaded  by  the  authority  of  persons  clothed 
with  authority  to  act,  and  who  exercise  that  authority  illegally,  the  per- 
sons aggrieved  must  seek  redress  by  certiorari.  It  appertains  to  the  gen- 
eral supervisory  jurisdiction  of  the  supreme  court,  exercising  in  that 
behalf  the  powers  of  the  king's  bench  to  correct  abuses  of  that  char- 
acter. The  same  broad  principle  is  stated  and  approved  in  Lawton  v. 
The  Commissioners  of  the  Highways  of  Cambridge,  2  Caines'  R.  182 ; 
"Wildy  i;.  Washburn,  16  Johns.  R.  49  ;  Le  Roy  v.  The  Corporation  of  New 
York,  4  Johns.  Ch.  R.  356. 

"And  although  it  may  be  true  that  this  statement  of  the  principle  is 
too  broad  and  includes  within  its  terms  a  class  of  wrongs  which  are 
clearly  not  the  subject  of  relief  by  certiorari,  the  principle  can  not  be 
limited,  as  is  attempted  to  be  done  in  the  matter  of  Mount  Morris 
Square,  2  Hill,  32,  to  a  mere  review  of  judicial  decisions.  It  is  certain 
that  in  this  state  the  remedy  has  been  extended  to  wrongs  inflicted 
upon  individuals,  whether  by  judicial  decision,  by  corporate  acts,  or  by 
the  acts  of  special  jurisdictions  created  by  statute. 

"  Thus  it  is  habitually  used  as  a  remedy  against  unlawful  taxation, 
either  for  state,  county,  township  or  city  purposes ;  and  while  the  rem- 
edy has  been  denied  in  other  states  as  dangerous  or  prejudicial  to  the 
public  welfare,  no  such  evil  has  been  experienced  from  the  use  of  the 
remedy,  while  it  has  been  found  eminently  salutary  and  efficacious  as  a 
protection  to  private  rights  against  oppressive  and  illegal  taxation. 

"  It  is  used  to  test  the  legality  of  an  election.  State  v.  Justices  of  Mid- 
dlesex, Coxe,  244 ;  State  v.  Anderson,  Coxe,  318 ;  to  test  the  validity  of 
a  by-law  of  a  municipal  corporation,  State  v.  Corporation  of  New  Bruns- 
wick, Coxe,  393 ;  to  test  the  validity  of  the  classing  and  assessing  of  the 
militia  under  the  militia  act  of  1794,  State  v.  Chambers,  Coxe,  400;  to 
review  the  return  list  of  delinquents,  and  executions  issued  for  the  col- 
lection of  fines  imposed  for  neglect  of  militia  duty,  State  v.  Kirby,  1 
Halst.  143 ;  State  v.  Atkinson,  4  Halst.  271 ;  the  laying  out  of  a  road  un- 
der an  act  incorporating  a  turnpike  company,  State  v.  Newark  and 
Pompton  Turnpike  Co.,  1  Penn.  338;  the  appointment  and  proceedings 
of  commissioners  appointed  to  value  lands  taken  by  corporations  for 
their  use,  and  to  appraise  damages  by  special  statutory  authority,  The 
State  V.  The  Morris  Canal,  7  Halst.  365  ;  2  Green,  411 ;  Bennett  v.  Rail- 
road Co.,  2  Green,  151 ;  Van  Wickle  v.  Railroad  Co.,  2  Green,  164;  Smith 
V.  The  Trenton  Delaware  Falls  Co.,  2  Harr.  5. 

"  One  of  the  most  familiar  uses  of  the  writ  is  to  test  the  validity  of 
the  proceedings  of  surveyors  and  freeholders  in  laying  out  and  confirm- 


I 


CERTIORARI.  721 

but  this  is  an  exception  to  the  general  rule  that  can  hardly 
be  supported,  in  principle,  or  by  any  very  satisfactory 
reasons.  Cases  can  be  found  in  which  it  is  held,  or  seems 
to  be  held,  that  certiorari  is  proper  where,  and  because,  the 
act  complained  of  is  not  judicial,  thus  reversing  the  gen- 
eral rule  on  the  subject.^  This  is  held  on  the  ground  that 
not  being  a  judicial  act  no  appeal  would  lie,  and  therefore 
certiorari  must  be  allowed. 

If  the  act  is  ministerial  it  makes  no  difference  that  it 
was  performed  by  a  judicial  officer.^ 

The  writ  can  not  be  used  to  contest  the  legal  existence 
of  a  corporation.^ 

"While  the  issuance  of  the  writ  is  within  the  discretion 
of  the  court  the  discretion  is  a  legal  and  not  an  arbitrary 
one,  and  may  be  reviewed  by  writ  of  error  or  appeal.* 

One  of  the  most  usual  statutory  limitations  upon  the 
power  of  the  courts  to  issue  the  writ  is  as  to  the  time 
when  it  may  issue.  This  is  a  limitation  that  the  legis- 
lature may  enforce.  But  this  is  subject,  as  in  other  cases, 
to  the  power  of  the  courts  to  relieve  a  party  from  a  failure 
to  act  in  time,  resulting  from  the  fraud  or  other  wrongful 

ing  of  public  highways ;  though,  according  to  some  of  the  authorities, 
the  laying  out  of  streets  and  highways  is  the  mere  exercise  of  municipal 
or  corporate  power  without  the  semblance  of  judicial  decision. 

"  These  instances  are  sufficient  to  show  that  the  writ  of  certiorari  has 
long  been  used  in  this  state  to  test  the  validity  of  the  acts  of  corpora- 
tions and  of  special  tribunals  not  judicial  in  their  character. 

"  In  the  case  of  The  State  v.  The  Corporation  of  New  Brunswick,  the 
eminent  counsel  of  the  city  did  not  question  the  right  of  a  corporator, 
by  writ  of  certiorari,  to  remove  and  try  the  validity  of  a  by-law  of  a  cor- 
poration. They  insisted  that  the  court  ought  not  to  award  the  writ  on 
the  prayer  of  an  individual,  without  showing  that  he  is  or  may  be  af- 
fected by  the  operation  of  the  by-law,  and  is  therefore  entitled  to  ques- 
tion its  validity.  But  the  court  held  that  a  sufficient  ground  for  the 
allowance  of  the  writ  was  shown,  the  court  being  informed  that  a  ques- 
tion as  to  the  validity  of  the  law  was  intended  to  be  brought  before 
them  for  adjudication,  and  that  the  prosecutor  had  been  injured  by  the 
law."     City  of  Camden  v.  Mulford,  2(5  N.  J.  Law,  49,  5-^. 

'  Champion  v.  Board  of  County  Commissioners,  5  Dak.  416 ;  41  N.  W. 
Rep.  739. 

^  People  V.  Bush,  40  Cal.  344.  '  State  v.  Brown,  31  N.  J.  Law,  355. 

*  Welch  V.  County  Court,  29  W.  Va.  63 ;  IS.  E,  Rep.  337. 
46 


722       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

act  of  his  adversary,  or  from  mistake,  accident  or  excusable 
neglect.  And  it  has  been  held  that  such  a  statute  is  not  a 
limitation  upon  the  discretionary  and  inherent  power  of 
the  court  to  relieve  a  party  through  the  writ.^ 

The  right  to  the  writ  may  be  lost  by  unreasonable  delay 
in  asking  for  it  independently  of  any  statutory  limitation.^ 

The  writ  operates  as  a  supersedeas  and  suspends  all  pro- 
ceedings in  the  lower  court  or  other  tribunal.^ 

In  the  absence  of  some  provision  of  law  expressly  au- 
thorizing it  the  writ  can  not  be  issued  by  a  judge  at  cham- 
bers, but  must  be  issued  by  the  court  in  term  time.* 

The  usual  judgment  where  the  proceedings  are  found  to 
be  without  authority  is,  that  the  proceedings  be  quashed 
or  annulled;  and  the  court  has  jurisdiction  to  annul  a 
part  of  the  judgment  of  the  lower  court  where  it  is  found 
to  be  void,  and  such  invalid  portion  of  the  judgment  is  so 
disconnected  with  that  which  is  found  to  be  valid  that 
they  are  not  interdependent.^ 

87.  Bills,  and  Writs,  of  Review. — A  bill  of  review,  in 
a  court  of  equity,  is  similar  to  a  writ  of  error  in  a  court  of 
law,  and  may  be  brought  for  error  of  law,  appearing  upon 
the  face  of  the  record.^ 

1  Matter  of  Lantis,  9  Mich.  324  ;  80  Am.  Dec.  85. 

"  Smith  V.  Superior  Court,  97  Cal.  348  ;  32  Pac.  Rep.  322. 

^  Hunt  r.  Lambertville,  46  N.  J.  Law,  59. 

*  State  V.  Black,  34  S.  Car.  194 ;  13  S.  E.  Rep.  361. 

s  Shafer  v.  Hogue,  70  Wis.  392 ;  35  N.  W.  Rep.  928. 

«  Story's  Eq.  PI.,  sees.  403-411 ;  2  Am.  &  Eng.  Enc.  of  Law,  262,  264; 
1  Black  on  Judg.,  sec.  301 ;  Whiting  r.  Bank  of  the  United  States,  13  Pet. 
6 ;  Barton's  Suit  in  Equity,  154;  Foster's  Fed.  Prac,  sec.  354,  p.  518. 

"  There  are  but  two  cases  in  which  a  bill  of  review  is  permitted  to  be 
brought,  and  these  two  cases  are  settled  and  declared  by  the  first  of  the 
ordinances  in  chancery  of  Lord-Chancellor  Bacon,  respecting  bills  of  re- 
view, which  ordinances  have  never  since  been  departed  from.  It  is  as 
follows:  '  No  decree  shall  be  reversed,  altered  or  explained,  being  nceo 
under  the  great  seal,  but  upon  bill  of  review.  And  no  bill  of  review 
shall  be  admitted,  except  it  contain  either  error  in  law,  appearing  in  the 
body  of  the  decree,  without  further  examination  of  matters  in  fact,  or 
some  new  matter,  which  hath  arisen  in  time  after  the  decree,  and  not 
any  new  proof,  which  might  have  been  used,  when  the  decree  was 
made.    Nevertheless,  upon  new  proof,  that  is  come  to  light  after  the 


5 

i 


BILLS,    AND    WRITS,    OF    REVIEW.  723 

"Where  the  writ  is  for  error  of  law,  the  question  must  be 
determined  by  the  record,  as  in  the  case  of  a  writ  of  error, 
and  the  evidence  can  not  be  resorted  to.^ 

The  bill  lies  also  upon  the  discovery  of  new  matter.^ 
Such  bills  are  allowed  only  where  the  decree  is  enrolled,' 
and  therefore  can  not  be  resorted  to  until  after  final  de- 
cree.* 

The  appropriate  remedy  for  the  review  of  decrees  not 
enrolled  was  by  bill  in  the  nature  of  a  bill  of  review,^  and 
its  ofiice  was  to  bring  before  the  court  new  matter  dis- 
covered since  the  publication  in  the  original  cause.^ 

There  are  also  bills  for  the  impeachment  of  decrees  for 
fraud.^ 

This  proceeding  by  bill  of  review,  or  by  bill  in  the 
nature  of  a  bill  of  review,  has  fallen  into  disuse  in  most 
of  the  state  s,having  been  superseded,  very  generally,  by 
other  remedies  provided  by  statute.  In  some  of  the  states 
the  writ  of  error  has  been  extended  so  as  to  be  available 
to  review  decrees  in  equity  as  well  as  judgments  at  ]aw.^ 

Under  the  codes  of  many  of  the  states  the  writ  of  ceiii- 
orari  is  made  applicable  to  all  civil  actions,  which  include 
w^hat  would  have  been  suits  in  equity  under  the  former 
practice. 

In  some  of  the  states  the  writ  of  review  is  provided  for 

decree  was  made,  which  could  not  possibly  have  been  used  at  the  time 
when  the  decree  passed,  a  bill  of  review  may  be  grounded  by  the  special 
license  of  the  court,  and  not  otherwise.'  So  that,  from  this  ordinance,  a 
bill  of  review  may  be  brought,  first,  for  error  of  law;  secondly,  upon 
discovery  of  new  matter."     Story's  Eq.  PL,  sec.  404. 

'  Whiting  V.  Bank  of  the  United  States,  13  Pet.  6 ;  Barton's  Suit  iu 
Eq.  L54. 

''  Story's  Eq.  PL,  sec.  412 ;  2  Am.  &  Eng.  Enc.  of  Law,  266. 

^  Story's  Eq.  PL,  sec.  412 ;  Whiting  v.  Bank  of  the  United  States,  13 
Pet.  6. 

*  Story's  Eq.  PL,  sec.  408a ;  2  Am.  &  Eng.  Enc.  of  Law,  263 ;  1  Black 
on  Judg.,  sec.  301. 

^Story's  Eq.  PL,  sec.  412;  Whiting  v.  Bank  of  the  United  States,  13 
Pet.  6;  Foster's  Fed.  Prac,  sec.  353,  p.  517. 
«  Story's  Eq.  PL,  sees.  364,  425. 
"<  Story's  Eq.  PL,  sec.  426;  Barton's  Suit  in  Eq.  157. 

*  Ante,  sec.  85. 


724       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

and  becomes  a  statutory  remedy  to  be  governed  by  the 
provisions  of  the  statutes  creating  them  and  regulating 
their  use,^  and  under  some  of  these  statutes  parol  proof 
may  be  heard  to  establish  the  ground  of  objection  to  the 
judgment  in  some  cases.^ 

In  some  of  the  states  the  writ  of  certiorari  is  denomi- 
nated a  writ  of  review,  and  is  so  called  in  the  decided 
cases;'  and  is  contined  to  the  question  of  the  jurisdiction 
of  the  court  and  the  validity  of  the  judgment,  and  does 
not  extend  to  mere  errors  or  irregularities,^  or  to  matters 
appearing  on  the  face  of  the  record,^  and  not  to  questions 
of  fact;^  and  is  confined  to  cases  in  which  no  speedy  and 
adequate  remedy  by  appeal  or  otherwise  can  be  had.® 

The  jurisdiction  in  proceedings  by  certiorari  has  been 
considered/  What  is  said  on  that  subject  is  applicable  tO' 
the  writ  of  review,  as  it  exists  in  those  states  in  which  it 
is  made  to  take  the  place  of  the  former  writ,  or  is  treated 
as  the  same  writ  by  another  name. 

Again,  in  some  of  the  states  an  action  by  complaint  is 
provided  for  by  which  errors  of  law  and  the  discovery  of 
material  new  matter  may  be  made  the  grounds  of  com- 
plaint, and  by  which  a  judgment  or  decree,  without  dis- 
tinction as   to  its  being  legal   or  equitable,  may  be  re- 

*  Quinn  v.  Brennan,  148  Mass.  562;  20  N.  E.  Rep.  184;  Sylvester  v. 
Hubley,  157  Mass.  306  ;  32  N.  E.  Rep.  166 ;  McNamara  v.  Carr,  84  Me. 
299;  24  All.  Rep.  856;  Skillings  v.  Massachusetts  Ben.  Assn.,  155  Mass. 
581 ;  30  N.  E.  Rep.  367 ;  Riley  v.  Hale,  146  Mass.  465 ;  16  N.  E.  Rep.  276. 

»  McNamara  v.  Carr,  84  Me.  299 ;  24  Atl.  Rep.  856. 

^  Saunders?;.  Sioux  City  Nursery,  etc.,  Co.,  6  Utah,  431 ;  24  Pac.  Rep. 
532 ;  Kearns  v.  FoUansby,  15  Or.  596 ;  16  Pac.  Rep.  478  ;  Reagan  v.  Jus- 
tices Court,  75  Cal.  253;  17  Pac.  Rep.  195  ;  Union  County  v.  Slocum,  16 
Or.  237;  17  Pac.  Rep.  876. 

*  Ante,  sec.  86 ;  Saunders  v.  Sioux  City  Nursery,  etc.,  Co.,  6  Utah,  431 ; 
24  Pac.  Rep.  532. 

"  Barton  v.  City  of  La  Grande,  17  Or.  577 ;  22  Pac.  Rep.  111. 

'Ante,  sec.  86;  Ramsey  v.  Pettingill,  14  Or.  207;  12  Pac.  Rep.  439; 
Rogers  v.  Hayes,  32  Pac.  Rep.  259 ;  Barton  v.  City  of  La  Grande,  17  Or. 
577 ;  22  Pac.  Rep.  111. 

'  Ante,  eec.  86. 


BILLS,    AND    WRITS,    OF    REVIEW.  725 

viewed,^  which  conforms  very  nearly  to  the  equitable  bill 
of  review. 

A  distinction  is  made  between  newly  discovered  evi- 
dence and  the  discovery  of  material  new  matter,  it  being 
held  that  the  former  is  not  ground  for  review  under  the 
statute.'^ 

A  newlv  enacted  statute  affecting:  the  rights  of  the 
parties  is  not  new  matter  within  the  meaning  of  the  law,^ 

It  is  held  that  a  decree  of  divorce  can  not  be  reviewed 
by  this  statutory  proceeding.* 

Where  the  complaint  is  based  upon  errors  of  law,  so 
much  of  the  record  as  will  fully  exhibit  the  error  com- 
plained of  must  be  set  out,  and  it  must  appear  that  proper 
exceptions  to  the  rulings  complained  of  were  taken  ;  ^  and 
if  the  error  has  been  waived  by  failure  to  except,  or  other- 
wise, the  review  can  not  be  had.^  The  error  must  be  such 
that  the  cause  would  be  reversed  on  appeal.^ 

The  action  thus  provided  for  differs  from  an  action  to 
annul  a  judgment,  and  is  in  all  material  respects  the  same 
as  a  writ  of  error  as  respects  the  ground  upon  which  it 
may  be  maintained.® 

^Nealis  v.  Dicks,  72  Ind.  374;  Hill  v.  Roach,  72  Ind.  57;  Floyd  Co. 
Agr.  Ass'n.  v.  Tompkins,  23  Ind.  348;  Evansville,  etc.,  R.  R.  Co.  v.  Mad- 
dux, 33  N.  E.  Rep.  345. 

^  Roush  t).  Layton,  51  Ind.  106;  Hall  r.  Palmer,  18  Ind.  5;  Nelson  v. 
Johnson,  18  Ind.  329. 

^  Worley  v.  Town  of  Ellettsville,  60  Ind.  7. 

*  Earle  v.  Earle,  91  Ind.  27. 

^  Goar  V.  Cravens,  57  Ind.  365 ;  Stevens  v.  City  of  Logansport,  76  Ind. 
498 ;  Cain  v.  Goda,  84  Ind.  209 ;  McDade  v.  McDade,  29  Ind.  340  ;  David- 
son V.  King,  51  Ind.  224;  Evansville,  etc.,  R.  R.  Co.  v.  Maddux,  33  N.  E. 
Rep.  345. 

^  Richardson  v.  Howk,  45  Ind.  451 ;  Collins  v.  Rose,  59  Ind.  33. 

'  Rice  V.  Turner,  72  Ind.  559 ;  Evansville,  etc.,  R.  R.  Co.  v.  Maddux,  33 
N.  E.  Rep.  345. 

"^  Willman  v.  AVillman,  57  Ind.  500 ;  Cain  v.  Goda,  84  Ind.  209 ;  Nealis 
V.  Dicks,  72  Ind.  374. 

'■  Properly  considered, a  proceeding  to  review  a  judgment  presupposes 
the  existence  of  a  valid  and  subsisting  judgment,  which  may,  on  the 
hearing,  be  affirmed,  reversed,  or  modified,  either  in  whole  or  in  part, 
as  the  justice  of  the  case  may  require,  and  is  prosecuted  on  the  theory 
that  there  is  such  a  valid  and  subsisting  judgment  which  ought  to  be 


726      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

The  remedy  by  action  to  review  does  not  supersede  or 
take  away  the  jurisdiction  of  the  courts  to  set  aside  and 
annul  judgments  procured  by  fraud  or  such  as  are  wholly 
void,  and  upon  grounds  not  mentioned  in  the  statute  as 
grounds  for  review.^ 

The  action  to  review,  thus  provided  for,  is  brought  in 
the  court  in  which  the  judgment  sought  to  be  reviewed 
was  rendered  ;  and  a  party  may  resort  to  this  remedy  or 
appeal,  at  his  option,  but  he  can  not  prosecute  both  reme- 
dies at  the  same  time.^  But  he  is  not  wholly  deprived  of 
his  remedy  by  appeal,  in  the  end,  as  he  may,  if  the  decision 
is  against  him  in  the  proceeding  for  review,  prosecute  an 
appeal  from  that  decision.^  If,  however,  the  proceeding 
to  review  is  sustained,  it  is  not  a  final  disposition  of  the 
original  case,  but  is  equivalent  to  a  reversal  of  the  action 
on  appeal  to  a  higher  court;*  but  the  judgment  is  final  as 
respects  the  proceeding  to  review,  and  is  subject  to  appeal 
whether  it  affirms  or  reverses  the  original  judgment.^ 

The  prosecution  to  final  judgment  of  a  proceeding  to 
review  bars  an  appeal.®  The  proceeding  can  not  be  used 
to  relieve  a  party  from  a  judgment  taken  against  him  on 
the  ground  that  the  attorney  who  appeared  for  him  acted 
without  authority,''  nor  is  itapplicable  to  an  ex  -parte  pro- 
ceeding by  a  guardian  for  the  sale  of  the  real  estate  of  his 
ward,^  nor  can  it  be  used  to  review  a  judgment  or  decision 
of  a  court  or  judge  thereof,  in  vacation,  growing  out  of 

reversed  or  modified.  An  action  to  annul  and  set  aside  a  void  judg- 
ment, although  it  may  have  the  form  and  similitude  of  a  proceeding  for 
the  review  of  the  judgment,  is,  nevertheless,  not  such  a  proceeding  in 
strictly  legal  contemplation.  It  is  proper  to  observe  this  distinction  in 
the  consideration  of  such  cases  as  the  one  before  us."  Willman  v.  Will- 
man,  57  Ind.  500,  503. 

^  Ante,  sec.  84 ;  Nealis  v.  Dicks,  72  Ind.  374. 

^  Dunkle  v.  Elston,  71  Ind.  585 ;  Klebar  v.  Town  of  Corydon,  80  Ind. 
95. 

'  Dunkle  v.  Elston,  71  Ind.  585. 

*  Leech  v.  Perry,  77  Ind.  422. 

^  Brown  v.  Keyser,  53  Ind.  85 ;  Keepfer  v.  Force,  86  Ind.  81. 

«  Traders'  Ins.  Co.  v.  Carpenter,  85  Ind.  350. 

^  Floyd  Co.  Agr.  Ass'n  v.  Tompkins,  23  Ind.  348. 

*  Davidson  v,  Lindsay,  16  Ind.  186. 


APPEALS.  727 

any  matter  connected  with  tlie  settlement  of  a  decedent's 
estate.^ 

Under  the  codes,  by  which  all  distinctions  in  practice 
and  pleading,  and  the  forms  of  procedure  are  abolished, 
all  final  judgments  or  decrees,  legal  or  equitable,  are  sub- 
ject to  review  in  the  same  way.  And  under  the  code  prac- 
tice this  is  not  done  by  bill  of  review,  so  denominated, 
although  the  action  provided  for,  and  the  wint  of  review,' 
serve  the  same  purpose.  But  the  chancery  proceeding  for 
review  has  not  been  abolished  in  all  of  the  states,  either 
expressly,  or  by  the  creation  of  other  remedies  to  take  its 
place,  but  is  still  maintained  under  its  original  name,^  and 
the  remedy  is  still  applied  in  the  federal  courts.^  A  court 
of  concurrent  jurisdiction  with  the  one  rendering  the 
judgment  can  not  entertain  a  proceeding  to  review  the 
same.*  A  decree  upon  a  bill  of  review  can  not  be  again 
reviewed  in  a  second  bill  of  review.^ 

88.  Appeals.'  Most  of  the  material  questions  affecting 
the  jurisdiction  of  appellate  courts  have  been  considered 
in  other  sections  of  this  work.'' 

1  McCurdy  v.  Love,  97  Ind.  62. 

'  Davis  Sewing  Machine  Co.  v.  Dunbar,  32  W.  Va.  335;  9  S.  E.  Rep. 
237;  Lorentz  r.  Lorentz,  32  W.  Va.  556;  9  S.  E.  Rep.  886;  Aholtz  v. 
Durfee,  122  111.  286;  13  N.  E.  Rep.  645  ;  Prentiss  r.  Paisley,  25  Fla.  927; 
7  Sou.  Rep.  56;  Dodge  v.  Northrop,  85  Mich.  243;  48  N.  W.  Rep.  505; 
Greer  v.  Turner,  47  Ark.  17;  14  S.  W.  Rep.  383;  Cox  v.  Lynn,  138  111. 
195  ;  29  N.  E.  Rep.  857  ;  Curry  v.  Peebles,  83  Ala.  225  ;  3  Sou.  Rep.  622  ; 
Mitchell  V.  Hardie,  84  Ala.  349 ;  4  Sou.  Rep.  182. 

^  Kimberly  t'.  Arms,  40  Fed.  Rep.  548;  Foster's  Fed.  Prac,  sec.  353 
et  seq. 

*  Dodge  V.  Northrop,  85  Mich.  243 ;  48  N.  W.  Rep.  505. 

*  Strader  v.  Heirs  of  Byrd,  7  Ohio,  184. 

*  See,  as  to  the  different  kinds  of  jurisdiction,  ante,  sec.  9;  jurisdic- 
tion as  to  amount,  as  it  affects  appellate  courts,  sec.  16,  p.  64 ;  original 
and  appellate  jurisdiction,  sec.  21 ;  how  question  of  jurisdiction  may  be 
raised  in  an  appellate  court,  sec.  22,  pp.  112,  114,  118;  how  jurisdiction 
may  be  lost,  taken  away,  or  suspended  by  appeal  or  writ  of  error,  sec. 
24,  p.  150;  inherent  powers  of  courts,  sec.  27;  effect  of  appeal  as  a 
waiver  of  service  of  process,  sec.  34,  p.  229 ;  see,  also,  the  sections  on 
the  various  writs  by  w'hich  proceedings  of  inferior  courts  are  enforced, 
prevented,  and  reviewed,  viz.,  injunctions,  sec.  79;  mandamus,  sec.  80; 


I 


728      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

Therefore,  but  little  further  need  be  said  in  this  con- 
nection. The  right  is  said  to  have  had  its  origin  in  the 
civnl  law  and  to  have  been  introduced  therefrom  into 
equity,  admiralty,  and  ecclesiastical  proceedings,  and  from 
thence  to  common-law  proceedings  to  which  it  was 
formerly  unknown.^  And  in  the  federal  courts,  and  in 
some  of  the  states,  appeal  is  still  the  proper  remedy  for 
the  review  of  equity  cases.^  But,  whether  applied  to 
equity,  admiralty,  ecclesiastical,  or  common-law  proceed- 
ings, it  may  properly  be  regarded  at  the  present  day  as 
wholly  statutory,  as  it  is  provided  for,  prescribed,  limited, 
controlled,  and  governed  in  its  exercise  and  use  by  con- 
stitutional and  statutory  provisions  which,  as  we  shall  see 
directly,  must  be  observed  or  the  remedy  is  lost;*  and,  as 
the  statutes  of  the  several  states  differ,  it  would  be  impos- 
sible, in  a  general  work  of  this  character,  to  enter  into  any 
consideration  of  such  statutes.  The  most  that  can  be 
done  here  is  to  deal  with  general  principles  applicable  to 
all  statutes,  leaving  specific  statutory  regulations  affecting 
the  right,  to  be  sought  in  the  various  local  works  in  which 

prohibition,  sec.  81 ;  habeas  corpus,  sec.  82 ;  quo  warranto,  sec.  83 ;  writs 
of  error,  sec.  85 ;  certiorari,  sec.  86 ;  and  writs  of  review,  sec.  87 ;  also 
new  trials  and  vacation  of  judgments,  sec.  84 ;  and  as  to  the  right  of  ap- 
peal in  contempt  proceeding,  ante,  sec.  72  ;  In  re  Deaton,  105  N.  Car.  59 ; 
11  S.  E.  Rep.  244;  and  in  divorce  cases,  ante,  sec.  73. 

1  1  Am.  &  Eng.  Enc.  of  Law,  61C  ;  Wiscart  v.  Dauchy,  3  Dall.  321 ;  The 
San  Pedro,  2  Wheat.  132. 

"  1.  Civil.  The  removal  of  a  cause  from  an  inferior  to  a  superior 
court.  It  was  a  civil-law  proceeding  in  its  origin,  and  was  introduced 
therefrom  into  equity,  admiralty,  and  ecclesiastical  proceedings,  to 
which  it  is  chiefly  confined,  and  from  thence  by  statute  into  our  com- 
mon-law proceedings,  and  to  which  it  was  originally  unknown.  In  or- 
der, therefore,  that  an  apjieal  may  be  sustained,  the  right  of  the  party 
to  appeal  must  clearly  appear,  and  it  is  consequently  lost  by  any  failure 
to  comply  with  the  statutory  regulations.  Appeals  are  distinguished 
from  writs  of  error  in  that  tlie  former  subject  both  the  facts  and  the  law 
to  a  re-examination,  wliile  the  latter  is  confined  to  a  re-examination  or 
review  of  questions  of  law."     1  Am.  &  Eng.  Enc.  of  Law,  616. 

2  Idaho,  etc.,  Co.  v.  Bradbury,  132  U.  S.  509 ;  10  Sup.  Ct.  Rep.  177 ; 
Hayes  v.  Fischer,  102  U.  S.  121 ;  Surgett  v.  Lapice,  8  How.  48. 

8  The  San  Pedro,  2  Wheat.  132  ;  People  v.  Richmond,  16  Colo.  274;  26 
Pac.  Rep.  929;  Lyons  v.  Lyons,  18  Cal.  448. 


APPEALS.  729 

the  subject  is  treated.  Formerly,  the  remedy  by  appeal 
was  regarded  as  the  appropriate  means  by  which  to  review 
questions  of  fact,  as  well  as  of  law,^  as  distinguished  from 
the  various  writs  by  which  questions  of  Jaw  were  open  to 
review  by  an  appellate  court,  and  particularly  the  writ  of 
error ;  ^  and  in  many  of  the  states  the  right  of  appeal  has 
been  extended  to  questions  of  law  and  all  other  questions 
which  might  formerly  be  raised  by  any  of  the  common-law 
writs  by  which  the  proceedings  of  inferior  courts  were 
subject  to  review.^ 

!N^ot  only  so,  but  in  many  of  the  states  the  remedy  by 
appeal  has  been  made  practically  the  exclusive  method  for 
the  review  of  the  proceedings  of  lower  courts  for  errors  of 
law  and  fact;^  the  writ  of  error  being  expressly  abolished 
in  some  of  the  states;^  and  writs  of  certiorari  and  other 
writs  of  like,  or  similar,  nature  intended  to  review  the 
proceedings  of  such  courts  on  account  of  errors  committed, 
or  even  for  want  of  jurisdiction,  in  some  of  the  states,  are 
allowed  only  where  no  appeal  is  provided  for,^  But  such 
statutes  do  not  change  the  remedy,  but  provide  another 
means  by  which  it  may  be  obtained  and  the  form  and 
manner  of  seeking  the  relief.  Therefore,  under  such  stat- 
utes, questions  of  law  may  be  reviewed  as  they  were  by 
the  different  writs  of  review,  but  under  a  proceeding  dif- 
fering in  name  and  form.^ 

Under  the  equity  practice  the  appellate  court  had  the 
power  to  look  into  the  whole  case,  including  the  evidence, 
and  decide  it  upon  the  merits.^  But  the  tendency  of  legis- 
lation and  decided  cases  has  been  to  restrict  this  power, 
and  in  many  of  the  states  the  appellate  courts  are  strictly 
courts  of  errors,  in  equity  as  well  as  in  common  law  cases, 

>  1  Am.  &  Eng.  Enc.  of  Law,  616 ;  Wiscart  v.  Dauchy,  3  Dall.  321,  327; 
Appeal  of  Long,  134  Pa.  St.  641 ;  19  Atl.  Rep.  806 ;  Stinger  v.  Roeder,  3 
Wash.  St.  412;  29  Pac.  Rep.  211 ;  Reed  v.  Nixon,  36  W.  Va.  681 ;  15  S.  E. 
Rep.  416. 

""  1  Am.  &  Eng.  Enc.  of  Law,  616 ;  Wiscart  v.  Dauchy,  3  Dall.  321,  327. 

^  Appeal  of  Long,  134  Pa.  St.  641 ;  19  Atl.  Rep.  806. 

*  Ante,  sees.  21,  85 ;  Appeal  of  Long,  134  Pa.  St.  641 ;  19  Atl.  Rep.  806. 

*  Ante,  sees.  79,  80,  81,  85,  86,  87.' 


730       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

and  can  not  pass  upon  the  mere  weight  of  the  evidence  or 
the  merits  of  the  controversy. 

Appeals  for  the  removal  of  causes  to  a  superior  court 
for  trial  de  novo  are  unknown  to  the  common  law,  and  can 
only  be  prosecuted  where  they  are  expressly  authorized  by 
statute,^  but  it  is  given  in  most  of  the  states  from  courts 
of  inferior  jurisdiction,  such  as  justices  of  the  peace  and 
similar  courts.  Appellate  jurisdiction  is  frequently  given 
by  constitutional  provisions,  and  when  so  given  can  not  be 
taken  away  by  statute.^  But  in  order  to  make  the  juris- 
diction thus  given  available,  legislation  may  still  be  neces- 
sary.^ 

Where  the  court  is  given  jurisdiction,  but  the  means  of 
taking  the  appeal,  or  the  mode  of  procedure,  has  not  been 
provided  by  statute,  the  court  has  inherent  power  to  pro- 
vide therefor,  by  its  own  rules,  in  order  to  render  such 
jurisdiction  effectual.* 

Appeal  is  not  the  proper  remedy  for  the  removal  of  a 
cause  from  a  state  court  to  the  supreme  court  of  the  United 
States.     The  remedy  is  by  writ  of  error.^ 

From  territorial  courts  the  case  may,  in  cases  of  trial  by 
jury,  be  removed  by  writ  of  error,  and  in  all  other  cases 
by  appeal.^ 

The  remedy  by  appeal  being  statutory,  it  must  be  sought 
within  the  time  and  in  the  manner  provided  by  the  statute 
in  the  particular  case  or  it  is  wholly  lost ;  ^  and  an  appeal 
is  no  more  effective  when  taken  too  soon  than  when  taken 
too  late.* 

^  Schooner  Constitution  v.  Woodworth,  1  Scam.  (111.)  511. 

2  Ante,  sec.  66.  '  Ohio  &  Miss.  R.  Co.  v.  Lawrence  Co.,  27  111.  49. 

*  People  V.  Jordan,  65  Cal.  644 ;  4  Pac.  Rep.  683. 

^  Verden  v.  Coleman,  22  How.  192 ;  Foster's  Fed.  Prac,  sec.  405. 

«  Idaho,  etc.,  Co.  v.  Bradbury,  132  U.  S.  509 ;  10  Sup.  Ct.  Rep.  177. 

'  Ante,  sec.  21 ;  1  Am.  &  Eng.  Enc.  of  Law,  621 ;  Briggs  v.  Barker,  145 
Mass.  287 ;  13  N.  E.  Rep.  907  ;  Gruell  v.  Spooner,  71  Cal.  493;  12  Pac.  Rep. 
511 ;  Thompson  v.  White,  76  Cal.  381 ;  18  Pac.  Rep.  399 ;  Fairchild  v. 
Daten,  38  Cal.  286 ;  Gardner  v.  Ingram,  82  Ala.  339 ;  2  Sou.  Rep.  879 ; 
Compte  V.  Toale,  24  Fla.  19 ;  3  Sou.  Rep.  413 ;  Executors  of  Yturbide  v. 
United  States,  22  How.  290 ;  Green  v.  Castillo,  35  Mo.  App.  127. 

8  Joint  School  Dist.  v.  Kemen,  68  Wis.  246  ;  32  N.  W.  Rep.  42  ;  Rose's 
Estate,  72  Cal.  577 ;  14  Pac.  Rep.  369. 


1 


APPEALS.  731 

The  courts  have  no  power  to  extend  the  time  unless  ex- 
pressly authorized  to  do  so  by  statute,^  nor  can  the  time 
limited  for  taking  the  appeal  be  extended  by  consent  of 
parties  ;^  but  the  courts  may  relieve  a  party  from  a  failure 
to  act  in  time  where  he  has  been  prevented  from  acting  by 
the  fraud  of  the  opposite  party,  or  by  accident,  as  in  other 
proper  cases.^  But  even  this  power  may  be  limited  as  to 
time.* 

What  are  "  special  proceedings  "  or  "  special  cases  "  un- 
der the  codes  of  some  of  the  states  and  the  question 
whether  appeals  may  be  taken  in  such  proceedings  or 
cases,  under  certain  constitutional  and  statutory  provis- 
ions, have  received  attention  in  other  sections.^ 

It  is  generally  held  that  an  appeal  will  only  lie  from 
final  judgments  ;^  but  this  is  subject  to    statutory  regu- 

1  Elliott's  App.  Pro.,  sec.  112 ;  Brough  v.  Meghill,  6  Utah,  317;  Brough 
V.  Richards,  23  Pac.  Rep.  673 ;  Cogswell  v.  Hogan,  1  Wash.  St.  4 ;  23  Pac. 
Rep.  835  ;  Executors  of  Yturbide  v.  United  States,  22  How.  290. 

'^  Cogswell  V.  Hogan,  1  Wash.  St.  4 ;  23  Pac.  Rep.  835. 

3  Elliott's  App.  Pro.,  sec.  112  ;  United  Lines  Tel.  Co.  v.  Stevens,  67  Md. 
156;  8  Atl.  Rep.  908;  Hubbard  v.  Yocum,  30  AV.  Va.  740;  5  S.  E.  Rep. 
867  ;  Hutts  i-.  Martin,  131  Ind.  1 ;  30  N.  E.  Rep.  698. 

*  Briggs  V.  Barker,  145  Mass.  287  ;  13  N.  E.  Rep.  907. 

*  Aiite,  sees.  33,  66,  68 ;  see  also  People  v.  Perry,  79  Cal.  105 ;  21  Pac. 
Rep.  423;  Sharon  v.  Sharon,  67  Cal.  185;  7  Pac.  Rep.  456,  635;  8  Pac. 
Rep.  709  ;  Appeal  of  Houghton,  42  Cal.  35 ;  Fairchild  r.  Doten,  42  Cal. 
125. 

«  Ante,  sec.  21 ;  1  Am.  &  Eng.  Enc.  of  Law,  616;  McLish  v.  Roff,  141 
U.  S.  661 ;  12  Sup.  Ct.  Rep.  118 ;  Meagher  r.  Minnesota,  etc.,  Co.,  145  U. 
S.  608;  12  Sup.  Ct.  Rep.  876;  Frederick  v.  Connecticut,  etc..  Bank, 
106  111.  147  ;  Walker  v.  Spencer,  86  N.  Y.  163 ;  International  Bank  v. 
Jenkins,  109  111.  219 ;  Snavely  r.  Abbott  Buggy  Co.,  36  Kan.  106 ;  12 
Pac.  Rep.  522 ;  Mitchell  v.  Powers,  16  Or.  487  ;  19  Pac.  Rep.  647;  Gates 
V.  Bucki,  53  Fed.  Rep.  961 ;  4  C.  C.  A.  Rep.  116.  As  to  what  will  amount 
to  a  final  judgment  within  the  rule,  see  1  Am.  &  Eng.  Enc.  of  Law,  617, 
618,  and  authorities  cited  in  the  notes;  Sharon  v.  Sharon,  67  Cal.  185  ; 
7  Pac.  Rep.  456,  635 ;  8  Pac.  Rep.  709 ;  Bolles  v.  Stockman,  42  Ohio  St. 
445  ;  Fleenor  v.  Driskill,  97  Ind.  27 ;  Frederick  v.  Connecticut,  etc..  Bank, 
106  111.  147 ;  International  Bank  v.  Jenkins,  109  111.  219 ;  State  v.  Arns, 
72  la.  555  ;  34  N.  W.  Rep.  329 ;  Guthrie  v.  Guthrie,  71  la.  744 ;  30  N.  W. 
Rep.  779;  Louisiana  Nat'l  Bank  v.  Whitney,  121  U.S.  284;  7  Sup.  Ct. 
Rep.  897;  Parsons  v.  Robinson,  122  U.  S.  112;  7  Sup.  Ct.  Rep.  1153; 
Harman  v.  Barhydt,  20  Neb.  625;  31  N.  W.  Rep.  488;  Schultz  v.  Keeler, 
13  Pac.  Rep.  481 ;  Grant  v.  Phoenix,  etc.,  Ins.  Co.,  106  U.  S.  429 ;  1  Sup. 


732      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

lation,  and  appeals  are  allowed,  in  some  of  the  states,  from 
interlocutory  decrees  and  orders,  and  from  orders  made 
after  judgment.^ 

"With  respect  to  this  question  it  may  be  said,  generally, 
that  unless  specifically  provided  otherwise,  an  appeal  will 
only  lie  from  a  final  judgment,  order,  or  decree  ;  but  that 
an  appeal  may  be  taken  from  any  judgment,  decree,  or 
order,  final  or  interlocutory,  if  the  statute  authorizes  it. 
In  other  words,  the  sole  question  as  to  the  right  of  appeal 
is  whether  it  is  authorized  by  the  statute  or  not.  And 
where  the  statute  fails  to  give  the  right  of  appeal  it  is 
usually  held  that  certiorari  is  the  proper  remedy  to  be  re- 
sorted to.^  There  can  be  no  appeal  from  a  refusal  of  a 
court  to  act.^  An  appeal  may  be  taken  from  a  part  of  a 
judgment.* 

Notice  of  the  appeal  in  some  form  is  generally  required 
to  be  given  to  the  adverse  party,  and  such  notice  is  neces- 
sary to  give  the  appellate  court  jurisdiction  f  and  where 
an  appeal  is  allowed  to  be  taken  by  a  part  only  of  the  los- 
ing parties  to  a  judgment,  notice  is  sometimes  required 
to  be  given  to  their  co-parties  who  do  not  join  in  the  ac- 
tion." 

The  notice  required  to  be  given  to  co-parties  is  said  td 

Ct.  Rep.  414;  Ex  parte  Norton,  108  U.  S.  237";  2  Sup.  Ct.  Rep.  490; 
Richards  v.  Coon,  13  Neb.  419 ;  14  N.  W.  Rep.  162 ;  Ross  v.  Evans,  30 
Minn.  206 ;  -14  N.  W.  Rep.  897 ;  Cleveland  v.  Burnham,  60  Wis.  16 ;  17 
N.  W.  Rep.  126 ;  Dufour  v.  Lang,  54  Fed.  Rep.  913  ;  4  C.  C.  A.  Rep.  663 ; 
2  U.  S.  App.  477. 

'  Weiser  v.  Day,  77  la.  25 ;  41  N.  W.  Rep.  476 ;  Baldwin  v.  Foss,  71  la. 
389;  32  N.  W.  Rep.  389. 

^  State  V.  Probate  Court,  51  Minn.  241 ;  53  N.  W.  Rep.  463. 

=*  Greehn  v.  Shumway,  73  Cal.  263 ;  14  Pac.  Rep.  863. 

*  Ante,  sec.  84 ;  Andrews  v.  Concannon,  76  la.  251 ;  41  N.  W.  Rep.  8. 

*  1  Am.  &  Eng.  Enc.  of  Law,  622;  Elliott's  App.  Pro.,  sec.  173;  Troun- 
stine  V.  Ware,  39  La.  Ann.  939 ;  3  Sou.  Rep.  122;  Toy  v.  San  Francisco 

6  S.  R.  R.  Co.,  75  Cal.  542;  17  Pac.  Rep.  700;  In  re  Castle  Dome,  etc., 
Co.,  79  Cal.  246;  21  Pac.  Rep.  746;  Melville  v.  County  of  Chehalis,  3 
Wash.  14;  13  Pac.  Rep.  904;  State  v.  Rogers,  71  la.  753;  32  N.  W.  Rep. 

7  ;  Barton  v.  Long,  45  N.»J.  Eq.JieO  ;  16  Atl.  Rep.  683. 

«  Elliott's  App.  Pro  sec.  144;  Hutts  v.  Martin,  131  Ind.  1 ;  30  N.  E. 
Rep.  698. 


1 


#: 


APPEALS.  733 

be  jurisdictional;^  but  as  the  object  of  the  notice  is  not  to 
acquire  jurisdiction  of  the  persons  of  such  co-defendants,  it 
is  difficult  to  see  upon  what  principle  the  notice  can  be 
held  to  be  jurisdictional.  The  better  rule  seems  to  be 
that  the  notice  to  co-parties  is  not  necessary  to  vest  the 
court  with  jurisdiction  of  the  appeal.^  But  while  the 
court  obtains  jurisdiction  of  the  appeal  without  such  no- 
tice, its  jurisdiction  may  be  limited  by  the  failure  to  give 
it,  as  it  can  render  no  judgment  that  will  affect  the  rights 
of  the  co-parties  not  notified.^ 

Where  the  judgment  is  joint,  all  the  parties  thereto 
must  be  joined  in  the  appeal,  and  if  any,  upon  notice,  re- 
fuse to  become  parties  to  the  proceedings,  those  desiring 
to  prosecute  the  appeal  may  do  so.^ 

But  this  has  been  changed  by  statute  in  some  of  the 
states  by  which  any  party  aggrieved  may  appeal  without 
joining  those  jointly  interested  with  him;^  and  where  a 
petition  in  error  is  provided  for  by  statute  it  is  held  that 
all  of  the  defendants  in  a  joint  judgment  are  necessary 
parties,  but  that  those  who  refuse  to  join  in  the  petition 
may  be  made  defendants  thereto  as  in  an  original  com- 
plaint.^ 

But  notice  even  to  the  adverse  parties  is  dispensed  with 
by  statute  in  some  of  the  states  where  the  appeal  is  taken 
within  the  term  at  which  the  judgment  is  rendered.^ 

I^otice  of  appeal  may  be  waived,  as  in  case  of  an  orig- 
inal summons,  or  other  notice.'^ 

In  the  absence  of  any  statutory  requirement  to  the  con- 

'  Elliott's  App.  Pro.,  sec.  144. 

^  Moore  v.  Held,  73  la.  538;  35  N.  W.  Rep.  623;  Wright  v.  Mahaffey, 
76  la.  96 ;  40  N.  W.  Rep.  112. 

3  Moore  v.  Held,  73  la.  538 ;  35  N.  W.  Rep.  623. 

♦  Todd  V.  Daniel,  16  Pet.  521. 

5  Lillienthal  v.  Carivite,  15  Or.  339 ;  15  Pac.  Rep.  280. 

«  ymetters  v.  Rainey,  14  Ohio  St.  287  ;  Curtin  v.  Atkinson,  29  Neb.  612; 
46  N.  W.  Rep.  91. 

'  Sauer  v.  Union  Oil  Co.,  43  La.  Ann.  699;  9  Sou.  Rep.  566;  Wilson  v. 
Bennett,  132  Ind.  210;  31  N.  E.  Rep.  184. 

8  Elliott's  App.  Pro.,  sees.  146, 175. 


734       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 


1 


trary,  notice  to  parties  who  will  be  affected  by  the  decision 
in  the  appellate  court,  only,  need  be  given. ^ 

It  has  been  held  that  unless  required  by  statute  no  no- 
tice of  an  appeal  need  be  given  ;^  but  this  is  not  in  accord- 
ance with  the  general  rule  that  notice,  in  some  form,  is 
always  necessary  where  an  action  is  commenced,  or  a  new 
and  independent  proceeding  taken  in  another  court.  No- 
tice, in  some  form,  is  necessary  to  constitute  due  process 
of  law;'  and  statutes  providing  that  no  notice  is  neces- 
sary, where  an  appeal  is  taken  in  term  time,  can  only  be 
upheld  upon  the  theory  that,  until  the  close  of  the  term, 
the  proceedings  are  in  fieri  and  the  parties  still  before  the 
court,  and  that  they  must,  therefore,  take  notice  of  all 
proceedings  taken  including  an  appeal. 

The  law  as  to  the  sufficiency  of  notice  and  service  is 
the  same,  in  principle,  as  in  case  of  original  process  which 
has  been  considered  in  another  place.* 

In  some  of  the  states  the  appellant  is  required  to  give 
bond  within  a  limited  time  in  order  to  perfect  his  appeal ; 
and  where  such  bond  is  required  it  is  as  requisite  that  it 
shall  be  executed  and  filed  within  the  time  limited  as  it  is 
that  notice  shall  be  given.^ 

But  provision  is  usually  made  for  the  amendment  of  a 
bond  on  appeal  where  it  is  defective,  or  the  giving  of  a 
new  one,  the  principle  being  the  same  as  in  case  of  de- 
fective notice  or  service.^ 

Sometimes  an  affidavit  on  appeal  is  required ;  and  this, 
also,  is  jurisdictional.^  m 

1  Guarantee  Trust  &  Safe  Dep.  Co.  v.  Buddington,  23  Fla.  514 ;  2  Sou. 
Eep.  885 ;  Miller  v.  Kea,  71  Cal.  405 ;  12  Pac.  Rep.  431 ;  Lillienthal  v. 
Carivita,  15  Or.  339 ;  15  Pac.  Eep.  280. 

2  McBrien  v.  Riley,  57  N.  W.  Rep.  385.  ^Ante,  sec.  33. 

*  Ante,  sees.  35,  36,  37,  40 ;  Guarantee  Trust  &  Safe  Dep.  Co.  v.  Bud- 
dington, 23  Fla.  514 ;  2  Sou.  Rep.  885 ;  Williams  v.  Schmidt,  14  Or.  470 ; 
13  Pac.  Rep.  305. 

=  Corcoran  v.  Dismond,  71  Cal.  100 ;  11  Pac.  Rep.  815. 

«  Wheeler  v.  Kuhns,  9  Colo.  196 ;  11  Pac.  Rep.  97 ;  Woodman  v.  Cal- 
kins, 12  Mont.  456 ;  31  Pac.  Rep.  63 ;  Rube  v.  Cedar  County,  35  Neb.  896; 
53  N.  W.  Rep.  1009. 

'  Kidder  v.  Fay,  60  Wis.  218 ;  18  N.  W.  Rep.  839. 


1 


APPEALS.  735 

In  most  of  the  states,  a  record  of  the  proceedings  in 
the  court  below  is  required  to  be  brought  up  and  filed  in 
the  appellate  court.  This  record  must  contain  so  much 
of  the  proceedings  as  is  necessary  to  present  the  question 
sought  to  be  reviewed,  the  question  must  appear  from  the 
record  to  have  been  presented  to  the  court  below  and  de- 
cided,^ an  exception  to  such  decision  must  appear  to  have 
been  taken  in  the  court  below,  at  the  proper  time,^  unless 
such  exception  is  dispensed  with  by  statute,  as  is  some- 
times the  case,  and  error  must  appear  from  the  record.^ 

Sometimes  the  question  must  be  resubmitted  to  the 
court  below  by  a  motion  for  a  new  trial  or  other  proceed- 
ing,* and,  generally,  an  assignment  of  errors  must  be  filed 
by  the  party  appealing,  showing  the  errors  complained  of.^ 
But  it  is  held  that  the  failure  to  serve  the  assignment  of 
errors  on  the  attorney  of  the  adverse  party,  when  re- 
quired, is  not  a  jurisdictional  defect.^ 

1  Xorthern  Pac.  Ry.  Co.  v.  Mares,  123  U.  S.  710 ;  8  Sup.  Ct.  Rep.  321 ; 
]Martyn  v.  Lamar,  75  la.  235 ;  39  N.  W.  Rep.  285 ;  Chapman  v.  City 
Council,  28  S.  Car.  373 ;  6  S.  E.  Rep.  158 ;  Citizens'  Bank  v.  Buddig,  65 
Miss.  284 ;  4  Sou.  Rep.  94 ;  Benton  v.  Beattie,  63  Vt.  186 ;  22  Atl.  Rep. 
422. 

^  1  Am.  &  Eng.  Enc.  of  Law,  624;  Lower  Providence,  etc.,  Ass'n  v. 
Weikel,  13  Atl.  Rep.  82;  Campbell  v.  Pittman,  3  Sou.  Rep.  455  ;  Thorn- 
ton V.  Brady,  100  N.  Car.  38 ;  5  S.  E.  Rep.  910. 

^  Coffin  V.  Taylor,  16  Or.  375  ;  18  Pac.  Rep.  638  ;  McClure  v.  Campbell, 
25  Neb.  57 ;  40  N.  W,  Rep.  595  ;  Kimmarle  v.  Houston,  etc.,  Ry.  Co.,  76 
Tex.  686 ;  12  S.  W.  Rep.  698 ;  Reed  v.  Nixon,  36  W.  Va.  681 ;  15  S.  E. 
Rep.  416. 

*  Fairfield  v.  Dawson,  39  Kan.  147 ;  17  Pac.  Rep.  804 ;  Buettinger  v. 
Hurley,  34  Kan.  585;  9  Pac.  Rep.  197;  Barrington  v.  Stoltz,  39  Minn. 
63;  38  N.  W.  Rep.  808  ;  Conuer  v.  Town  of  Marion,  112  Ind.  517;  14  N. 
E.  Rep.  488. 

^Elliott's  App.  Pro.,  sec.  303;  Clark  v.  Schnur,  40  Kan.  72;  19  Pac. 
Rep.  327;  First  Nat'l  Bank  v.  JaflFrey,  41  Kan.  691:  19  Pac.  Rep.  626; 
International  &  G.  N.  R.  Co.  v.  Underwood,  67  Tex.  589  ;  4  S.  W.  Rep. 
216  ;  Thornton  v.  Brady,  100  N.  Car.  38  ;  5  S.  E.  Rep.  910  ;  Buncombe  v. 
Powers,  75  la.  185;  39  N.  W.  Rep.  261;  Tuscaloosa,  etc.,  Co.  v.  Perry, 
85  Ala.  158 ;  4  Sou.  Rep.  635 ;  Steele  v.  Grand  Trunk,  etc.,  Ry.  Co.,  125 
111.  385;  17  N.  E.  Rep.  483;  Line  r.  State,  131  Ind.  468;  30  N.  E.  Rep. 
703;  Lawrence  v.  Wood,  122  Ind.  452;  24  N.  E.  Rep.  159;  Wallace  v. 
Robeson,  100  N.  Car.  206 ;  6  S.  E.  Rep.  650. 

«  Smith  V.  Wingard,  4  Wash.  37 ;  13  Pac.  Rep.  903. 


736        COMMON  LAW,  EQUITY,  AND  :;T.vT'JTor.Y  JURISDICTION. 

These  requirements  constitute  limitations  upon  the  ju- 
risdiction of  the  appellate  court,  and  only  such  questions 
as  are  presented  by  the  record  in  the  manner  provided 
will  be  considered.^ 

There  are  exceptions  to  the  rule  that  only  such  ques- 
tions as  have  been  presented  to  the  court  below  will  be 
heard  on  appeal.  These  are  a  want  of  jurisdiction  of  the 
subject-matter,^  that  the  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,^  or  that  the  judg- 
ment is  void  for  other  reasons,  which  may  be  presented  in 
the  appellate  court  for  the  first  time. 

An  appeal  which  vests  jurisdiction  in  the  appellate 
court  takes  it  away  from  the  court  below,  and  no  further 
proceeding  can  be  had  in  the  latter  court,*  except  that  in 
some  cases  the  judgment  may  be  enforced  unless  a  bond  is 
given  to  stay  proceedings.* 

Appellate  courts  are  possessed  of  such  inherent  powers, 
and  may  exercise  such  incidental  or  auxiliarj'^  jurisdiction, 
as  may  be  necessary  to  protect  their  general  appellate  ju- 
risdiction and  enforce  their  orders  and  decrees,  and  to  this 
end  they  may  issue  such  writs  as  may  be  necessary  for 
that  purpose,  including  certiorari  to  correct  or  bring  up 
the  record  on  appeal,  injunction,  mandamus,  and  prohibi- 
tion.^ 

If  a  court  entertains  an  appeal  where  no  appeal  is  al- 
lowed by  law,  it  may  be  prevented  from  acting  by  prohibi- 
tion,^ or,  as  is  held  in  some  of  the  cases,  by  mandamus  to 
compel  the  court  to  dismiss  the  appeal.^ 

^  1  Am.  &  Eng.  Enc.  of  Law,  624;  Leach  v.  Lothian,  10  Colo.  439;  15 
Pac.  Rep.  816. 

^  1  Am.  &  Eng.  Enc.  of  Law,  624;  Tuscaloosa,  etc.,  Co.  v.  Perry,  85 
Ala.  158  ;  4  Sou.  Rep.  635  ;  Fowler  v.  Eddy,  110  Pa.  St.  117  ;  1  Atl.  Rep. 
789. 

3  Du  Souchet  v.  Dutcher,  113  Ind.  249  ;  15  N.  E.  Rep.  459  ;  Branch  v. 
Faust,  115  Ind.  464 ;  17  N.  E.  Rep.  898. 

*  Ante,  sec.  24,  p.  150. 

5  Ante,  sees.  79,  80,  81,  86 ;  Elliott'p  App.  Pro.,  sees.  504-518. 

*  Ante,  sec.  81. 

^  Palmer  v.  Jackson,  90  Mich.  1 ;  50  N.  W.  Rep.  1085. 


NATURALIZATION.  737 

Jurisdiction  of  an  appeal  can  not  be  given  by  consent 
where  none  exists  by  law.^ 

89.  Natukalization.     Jurisdiction  in  matters  of  natural- 
ization is  vested  by  statute   in   the   circuit   and   district 
courts  of  the  United  States,  and  the  district  and  supreme 
courts  of  the  territories,  and  state  courts  of  record  having^ 
common-law  jurisdiction,  and  a  seal,  and  clerk,^ 

The  exclusive  power  to  provide  for  such  naturalization 
is  vested  in  congress  by  the  constitution,  and  the  power 
can  not  be  exercised  by  the  states.'  Formerly  the  declara- 
tion of  intention,  under  oath,  was  required  to  be  made  be- 
fore the  court,*  but  it  may  now  be  made  before  the  clerk 
of  any  of  the  courts  naraed.^ 

If  the  courts  were  allowed,  under  the  statute,  to  exer- 
cise their  discretion  as  to  the  general  qualifications  as  to 
intelligence  and  other  attributes  of  a  good  and  useful  citi- 
zen, necessary  to  entitle  an  applicant  to  become  such,  this 
would  be  a  most  important  jurisdiction.  As  it  is  the  only 
questions  upon  which  the  court  is  required  or  authorized 
to  pass  is  whether  the  applicant  has  resided  within  the 
United  States  for  five  years,  and  in  the  state  or  territory 
where  the  court  is  at  the  time  held,  one  year,  and  has,  dur- 
ing that  time,  behaved  as  a  man  of  good  moral  character 
attached  to  the  principles  of  the  constitution  of  the  United 
States,  and  well  disposed  to  the  good  order  and  happiness 
of  the  same.®  And  as  to  all  of  these  qualifications,  except 
that  of  residence,  the  mere  oath  of  the  applicant,  alone,  is 

^  Crane  v.  Farmer,  14  Colo.  294 ;  23  Pac.  Rep.  455 ;  Harvey  v.  Trav- 
elers Ins.  Co.,  18  Colo.  354 ;  32  Pac.  Rep.  935. 

^  Rev.  Stat.  U.  S.,  sec.  2165  ;  Claflin  v.  Houseman,  93  V.  S.  130  ;  Mat- 
ter of  Ramsden,  13  How.  Pr.  429. 

'  Const.  U.  S.,  Art.  1,  sec.  8;  Matter  of  Ramsden,  13  How.  Pr.  429; 
Stephens,  Petitioner,  4  Gray,  559 ;  Chirac  v.  Chirac,  2  Wheat.  260.  But 
see  CoUett  v.  CoUett,  2  Dall.  294,  in  which  it  is  held  that  the  states 
have  concurrent  power  with  congress  upon  the  subject  of  naturalization. 

*  Rev.  Stat.  U.  S.,  sec.  2165. 

*  Supl.  Rev.  Stat.  U.  S.,  Vol.  I,  p.  97 ;  19  Stat,  at  L.  2. 
«  In  re  Kanaka  Nian,  6  Utah,  259 ;  21  Pac.  Rep.  993. 

47 


738      COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

sufficient  to  entitle  him  to  citizenship  in  the  discretion  of 
the  court.^ 

But  the  discretion  of  the  court  has  been  extended,  by  a 
very  liberal  construction  of  the  statute,  and  an  applicant 
who  did  not  appear  to  have  sufficient  intelligence  to  un- 
derstand the  principles  of  the  government  has  been  refused 
the  rights  of  citizenship.^ 

1  Rev.  Stat.  U.  S.,  sec.  2165. 

^  "The  admission  of  the  applicant  to  citizenship  was  opposed,  also, 
on  the  ground  that  he  did  not  appear  to  be  possessed  of  sufficient  in- 
telligence to  become  a  citizen  ;  that  his  intellect  and  conscience  were 
not  sufficiently  enlightened.  The  second  division  of  section  2165  of  the 
Revised  Statutes  requires  that  the  applicant  shall  declare  on  oath  be- 
fore the  court  that  he  will  support  the  constitution,  and  that  he  abso- 
lutely and  entirely  renounces  and  abjures  all  allegiance  and  fidelity  to 
every  foreign  prince,  potentate,  state,  and  sovereignty  whatever,  and 
particularly  to  the  one  of  which  he  was  before  a  citizen  or  subject.  His 
feeling  of  obligation  to  his  adopted  country  must  be  paramount  to  such 
feeling  for  any  other.  His  allegiance  must  be  undivided.  The  third 
division  of  the  above  section  is  as  follows  :  '  It  shall  be  made  to  appear 
to  the  satisfaction  of  the  court  admitting  such  alien  that  he  resided 
within  the  United  States  five  years  at  least,  and  within  the  state  or  ter- 
ritory where  such  court  is  at  the  time  held  one  year  at  least ;  and  that 
during  that  time  he  has  behaved  as  a  man  of  good  moral  character,  at- 
tached to  the  principles  of  the  constitution  of  the  United  States,  and 
well  disposed  to  the  good  order  and  happiness  of  the  same.  .  .  .' 
This  provision  imposes  upon  the  court  the  duty  of  determining,  upon 
the  evidence,  whether  the  applicant  has  behaved  during  his  residence 
as  a  man  of  good  moral  character,  attached  to  the  principles  of  the 
constitution,  and  well  disposed  to  the  good  order  and  happiness  of  the 
people  of  the  United  States.  This  statute  makes  it  the  duty  of  the 
court  to  judge  of  the  applicant's  moral  character  from  his  conduct  in 
evidence,  as  well  as  of  his  attachment  to  the  constitution  and  his  dispo- 
sition toward  the  good  order,  happiness,  and  welfare  of  the  people.  The 
constitution  places  on  the  citizen  the  direction  of  the  government ;  that 
government  which  should  protect  human  life,  but  may  sacrifice  it;  that 
may  guard  our  liberties,  or  may  be  used  to  overthrow  them  ;  that  should 
secure  our  right  to  the  pursuit  of  happiness,  and  to  property,  but  which 
may  violate  or  destroy  them.  The  will  upon  which  the  welfare  of  the 
millions  who  are  now  here,  and  who  are  to  follow  us,  so  largely  de- 
pends, should  be  intelligent  and  virtuous.  The  man  intrusted  with  the 
high,  difficult,  and  sacred  duties  of  an  American  citizen  should  be  in- 
formed and  enlightened.  He  should  have  sufficient  intelligence  to  dis- 
criminate right  from  wrong  in  political  matters,  and  should  possess  a 
feeling  of  moral  obligation  sufficient  to  cause  him  to  adopt  the  right. 


1 


NATURALIZATION.  739 

The  example  is  a  wholesome  one  that  it  would  be  well 
for  other  courts  to  follow. 

As  to  the  statutory  qualifications,  the  court  before  which 
the  same  is  made  must  be  satisfied/  and  therefore  some 
discretion  is  vested  in  the  courts  respecting  the  proof 
necessary  to  establish  their  existence. 

The  necessity  of  making  the  preliminary  declaration  of 
intention,  and  proof  of  residence  for  the  full  five  years,  is 
dispensed  with  in  certain  cases,  but  these  exceptions  are 
not  important  in  this  connection. 

The  initiatory  proceedings  which  are  authorized  to  be 
taken  before  the  clerk  are  ministerial ;  but  the  final  pro- 
ceedings by  which  the  applicant  is  admitted  to  citizenship 
are  judicial ;  ^  the  adjudication  of  the  court  is  conclusive, 
as  against  a  collateral  attack,  as  in  other  cases  ;^  and  the 
certificate  can  not,  in  a  collateral  proceeding,  be  over- 
thrown by  proof  that  it  was  procured  by  false  or  perjured 

In  the  law  quoted  congress  expressed  an  intention  to  admit  to  citizen- 
ship aliens  of  good  moral  character,  attached  to  the  principles  of  lib- 
erty and  justice  contained  in  the  constitution,  and  desirous  of  the  pub- 
lic good,  and  to  exclude  aliens  who  live  immoral  lives  and  disregard 
moral  principles,  who  are  in  favor  of  despotism,  and  are  indifTerent 
to  or  opposed  to  those  institutions  upon  which  the  welfare  of  all 
depends.  They  intended  to  exclude  the  immoral,  those  who  are  op- 
posed to  the  principles  of  liberty  and  justice,  or  are  in  favor  of  anarchy 
and  confusion.  Xo  alien  who  is  not  willing  to  support  the  constitution, 
and  all  laws  pursuant  to  it,  should  be  admitted  to  citizenship.  No  one 
should  be  admitted  who  has  not  sufficient  intelligence  to  understand 
the  principles  of  the  government  which  may  rest  in  part  on  his  will." 
In  re  Kanaka  Nian,  6  Utah,  259  ;  21  Pac.  Rep.  993. 

^  Rev.  Stat.  U.  S.,  sec.  2165,  sub.  3. 

'  Ex  parte  Knowles,  5  Cal.  300 ;  State  v.  Hoeflinger,  35  Wis.  393 ; 
Spratt  V.  Spratt,  4  Pet.  393  ;  State  r.  Barrett,  40  Minn.  65 ;  41  N.  W.  Rep. 
459  ;  State  v.  Boyd,  31  Neb.  682  ;  48  N.  W.  Rep.  739 ;  Morgan  v.  Dudley, 
18  B.  Monroe,  693;  68  Am.  Dec.  735;  Charles  Green's  Son  v.  Salas,  31 
Fed.  Rep.  106. 

3  People  V.  McGowan,  77  111.  644;  20  Am.  Rep.  254 ;  State  v.  Hoeflinger, 
35  Wis;  393,  400 ;  McCarthy  r.  Marsh,  5  N.  Y.  263;  Spratt  v.  Spratt,  4 
Pet.  393,  407  ;  Behrensmeyer  v.  Kreitz,  135  111.  591 ;  26  N.  E.  Rep.  704  ; 
The  Acorn,  2  Abb.  U.  S.  434;  1  Fed.  Cas.  52;  Stark  r.  Chesapeake  Ins. 
Co.,  7  Cranch,  420  ;  Charles  Green's  Son  v.  Salas,  31  Fed.  Rep.  106. 


740        COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

testimony ;  ^  but  may  be  attacked  and  set  aside  for  fraud, 
in  a  direct  proceeding  for  that  purpose,  as  in  other  cases, 
where  the  fraud  or  collusion  is  as  to  matters  collateral  and 
not  before  the  court  or  involved  in  the  issue  to  be  deter- 
mined;^ and  the  court  may  vacate  its  judgment  or  order 
in  such  proceedings  as  in  other  cases? 

A  proceeding  by  the  United  States  to  annul  a  certificate 
of  naturalization  obtained  from  a  state  court  by  fraud  may 
be  prosecuted  in  a  federal  court.* 

The  adjudication  can  be  shown  only  by  the  record,  and 
can  not  be  established  by  parol  evidence;^  but  this  rule 
does  not  prevent  parol  proof  of  the  contents  of  a  record 
lost  or  destroyed.®  *f 

Where  the  record  shows  all  of  the  facts  necessary  to  en- 
title the  applicant  to  citizenship,  no  formal  order  of  the 
court  to  that  effect  is  necessary  to  establish  his  right  ;^  and 
the  fact  that  one  has  been  naturalized  may  be  inferred,  or 
presumed,  from  the  fact  that  he  has,  for  a  long  time, 
voted,  held  office,  and  exercised  all  the  rights  and  privi- 
leges of  a  citizen.^ 

A  court,  having  power  under  the  laws  of  the  state  to 
amend  its  records  by  orders  nunc  pro  tunc,  may  do  so  in 
cases  of  naturalization,  although  no  such  power  is  given 
them  by  the  act  of  congress  vesting  them  with  jurisdiction 
in  such  proceedings.® 

The  order  or  certificate  admitting  the  applicant  to  citi- 
zenship vests  him  therewith  only  from  the  time  such  order 

1  6  Am.  &  Eng.  Enc.  of  Law,  435 ;  The  Acorn,  2  Abb.  U.  S.  434;  1  Fed. 
Cas.  52. 

2  Ante,  sec.  84 ;  The  Acorn,  2  Abb.  U.  S.  434 ;  1  Fed.  Cas.  52. 
'  Ante,  sec.  84;  United  States  v.  Norsch,  42  Fed.  Rep.  417. 
*  United  States  v.  Norsch,  42  Fed.  Rep.  417. 
^  Dryden  v.  Swinburne,  20  W.  Va.  89 ;  State  r.  Boyd,  31  Neb.  682 ;  48 

N.  W.  Rep.  739 ;  Berry  v.  Hull,  30  Pac.  Rep.  936 ;  Charles  Green's  Son  v. 
Salas,  31  Fed.  Rep.  106. 

«  Charles  Green's  Son  v.  Salas,  31  Fed.  Rep.  106. 

^  Cowan  V.  Prowse,  19  S.  W.  Rep.  407 ;  Matter  of  Christern,  56  How. 
Pr.  5;  43  N.  Y.  Super.  Ct.  523;  Campbell  v.  Gordon,  6  Cranch.  176. 

8  Boyd  V.  State  of  Nebraska,  143  U.  S.  135  ;  12  Sup.  Ct.  Rep.  375.  But 
see  to  the  contrary.  State  v.  Boyd,  31  Neb.  682  ;  48  N.  W.  Rep.  739. 

9  Matter  of  Christern,  56  How.  Pr.  5  ;  43  N.  Y.  Super.  Ct.  523. 


i 


NATURALIZATION.  741 

is  made.  It  can  not  be  made  to  relate  back  to  a  prior  date 
even  by  an  express  order  of  the  court  to  that  effect.^ 

The  jurisdiction  in  the  state  courts  is  peculiar  in  that  it 
is  vested  by  act  of  congress  which  can  not,  ordinarily,  be 
done.^ 

The  cases  differ  as  to  the  capacity  in  which  the  state 
courts  act,  whether  as  the  agents  of  and  for  the  general 
government,  or  whether  the  jurisdiction  is  to  be  regarded 
as  a  part  of  their  jurisdiction  as  state  courts  extended  by 
act  of  congress  to  this  particular  proceeding,^  and,  there- 
fore, whether  the  state  courts  are  bound  to  perform  the 
duty  thus  imposed  upon  them.* 

But  these  questions  are  not  material,  as  the  courts  have 
almost  uniformly  acted  upon  the  theory  that  it  is  their 
duty  to  exercise  the  jurisdiction,  and  their  power  to  exer- 
cise it  has  been  thoroughly  established.^ 

One  of  the  uncertain  elements  of  the  jurisdiction  is  the 
oft-recurring  one  as  to  what  are  courts  of  record  having 
common-law  jurisdiction.  The  purport  of  the  decided 
cases  is  that  it  is  not  necessary  that  the  court  shall  be  one 
of  general  common-law  jurisdiction,  but  that,  if  it  exer- 
cises such  jurisdiction  at  all,  however  limited  the  jurisdic- 
tion may  be,  it  is  within  the  statute.^ 

1  Dryden  v.  Swinburne,  20  W.  Ya.  89,  115 ;  State  v.  Boyd,  31  Neb.  682; 
48  N.  W.  Rep.  739. 

2  Ex  parte  Knowles,  5  Cal.  300. 

5  Ex  parte  Knowles,  5  Cal.  300;  Claflin  v.  Houseman,  93  U.  S.  130,- 
140 ;  Matter  of  Ramsden,  13  How.  Pr.  429. 

*  Matter  of  Ramsden,  13  How.  Pr.  429;  Stephens,  Petitioner,  4  Gray, 
559. 

^  Matter  of  Conner,  39  Cal.  98 ;  Claflin  v.  Houseman,  93  U.  S.  130, 140; 
United  States  r.  Lehman,  39  Fed.  Rep.  49;  Dale  v.  Irwin,  78  111.  170, 
183  ;  People  v.  McGowan,  77  111.  644 ;  20  Am.  Rep.  254  ;  :Morgan  v.  Dud- 
ley, 18  B.  Monroe,  693 ;  68  Am.  Dec.  735  ;  Stephens,  Petitioner,  4  Gray, 
559. 

®  This  question  has  been  considered  in  other  sections :  Ant^,  sees.  6,  7, 
20,  23,  25.  But  see  further  as  to  the  qualification  of  the  courts  under 
this  section  of  the  act  of  congress.  Ex  parte  Knowles,  5  Cal.  300 ;  Matter 
of  Conner,  39  Cal.  98;  United  States  v.  Lehman,  39  Fed.  Rep.  49  ;  Dale 
V.  Irwin,  78  111.  170,  183;  People  v.  McGowan,  77  111.  644  ;  20  Am.  Rep. 
254;  Morgan  v.  Dudley,  18  B.  Monroe,  693;  68  Am.  Dec.  735;  Mills  v. 


742     COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

But  the  court  must  not  only  have  common-law  juris- 
diction. It  must  have  the  other  statutory  qualifica- 
tions. Therefore  a  court  which  is  not  a  court  of  record 
or  has  no  clerk  has  no  jurisdiction  in  this  class  of  pro- 
ceedings.^ 

It  has  been  held  that  the  declaration  of  intention  before 
the  clerk  need  not  be  made  at  the  ofiice  of  the  clerk  or  in 
open  court,  but  may  be  made  elsewhere;^  but  this  has 
been  doubted.'  ^ 

The  mere  misnomer  of  the  applicant  in  the  certificate  ' 
of  citizenship  does  not  vitiate  it,  and  the  true  name  may  r 
be  shown  by  parol.*  m 


90.  Pardons.  The  judgment  of  a  court  in  a  criminal 
case  may  be  deprived  of  its  force  and  efiect  either  wholly 
or  in  part,  and  its  execution  prevented,  by  a  pardon  of  the 
defendant.  The  power  to  pardon  is  in  no  sense  a  judicial 
function,^  although  executive  and  other  ofiicers  vested 
with  the  pardoning  power  may  feel  it  incumbent  upon 
them  to  investigate  anew  the  law  and  evidence  upon 
which  the  applicant  for  executive  clemency  was  convicted 
at  the  trial. 

The  power  is  an  executive  one  and  is  defined  as  "  an  act 
of  grace  proceeding  from  the  powers  intrusted  with  the 
execution  of  the  laws,  which  exempts  the  individual  on 
whom  it  is  bestowed  from  the  punishment  the  law  inflicts 
for  a  crime  he  has  committed."  ^  J 

McCabe,  44  111.  194;  Knox  County  v.  Davis,  63  111.  405;  In  re  Dean,  83 
Me.  489  ;  22  Atl.  Rep.  385 ;  People  v.  Pease,  30  Barb.  588,  599. 

1  In  re  Dean,  83  Me.  489 ;  22  Atl.  Rep.  385. 

"  Andres  v.  Judge,  77  Mich.  85 ;  43  N.  W.  Rep.  857. 

3  In  re  Langtry,  31  Fed.  Rep.  879. 

♦  Behrensmeyer  v.  Kreitz,  135  111.  591 ;  26  N.  E.  Rep.  704. 

5  United  States  v.  Wilson,  7  Pet.  150;  State  v.  Sloss,  25  Mo.  291 ;  69 
Am.  Dec.  467;  Commonwealth  v.  Halloway,  44  Pa.  St.  210;  84  Am.  Dec. 
431. 

^  17  Am.  &  Eng.  Enc.  of  Law,  317.  As  to  the  difference  between  par- 
don, reprieve,  commutation,  and  amnesty,  and  the  effects  of  each,  see 
8  Am.  Law  Reg.,  pp.  513,  577,  where  the  extent  of  the  power  to  pardon 
and  the  effect  of  its  exercise  are  fully  discussed.  See,  also,  on  the  same 
subjects,  Ex  parte  Wells,  18  How.  307 ;  Sterling  v.  Drake,  29  Ohio  St. 


I 


PARDONS.  743 

The  power  to  pardon  includes  the  power  to  reprieve  un- 
less otherwise  provided ;  ^  but  not  the  power  of  commuta- 
tion, which  is  the  substitution  of  one  punishment  for 
another.* 

The  term  commutation  is  sometimes  used,  however,  as 
the  shortening  of  a  term  of  imprisonment,  or  otherwise 
lessening  the  punishment,  and  so  used  it  is  within  the 
general  power  to  pardon.  It  was  a  prerogative  power' 
at  common  law%  in  England,  and  belonged  to  the  crown, 
although  limited  and  controlled  by  parliament.^ 

In  this  country  the  power,  as  respects  offenses  against 
the  federal  government,  except  in  cases  of  impeachment, 
is  vested  by  the  constitution  in  the  President  of  the  United 
States.* 

In  the  several  states  the  power  is  generally  vested,  by 
the  constitution,  in  the  governor;  but  in  some  a  board  of 
pardons,  consisting,  usually,  of  the  governor  and  other 
designated  officers,  is  provided  for ;  and  in  others  limita- 
tions of  difi'erent  kinds,  requiring  the  concurrence  of  others 
than  the  governor,  are  imposed,  upon  the  theory  that  ab- 
solute and  uncontrolled  power  and  discretion  in  a  matter 
of  such  importance  should  not  be  vested  in  one  man.* 

Where  the  powder  is  given  by  the  constitution,  its  exer- 
cise can  not  be  taken  away  or  limited  by  statute,  unless 
such  power  of  limitation  or  restraint  is  authorized  by  the 
constitution  itself;®  and  the  power  can  not  be  exercised 
directly  by  the  legislative  department  of  government.^ 

457;  23  Am.  Rep.  762;  Osborn  v.  United  States,  91  U.  S.  474;  In  re 
Deming,  10  Johns.  (N.  Y.)  232;  Cook  v.  Freeholders,  26  N.  J.  Law,  326; 
27  N.  J.  Law,  637;  Ex  parte  Janes,  1  Nev.  319. 

1  Ex  parte  Wells,  18  How.  307 ;  Sterling  v.  Drake,  29  Ohio  St.  457 ;  23 
Am.  Rep.  762. 

'  Ex  parte  Janes,  1  Nev.  319. 

'  17  Am.  &  Eng.  Enc.  of  Law,  318;  8  Am.  Law  Reg.  526,  529;  Sterling 
V.  Drake,  29  Ohio  St.  457 ;  23  Am.  Rep.  762. 

*  Const.  U.  S.,  Art.  2,  sec.  2 ;  United  States  v.  Wilson,  7  Pet.  150. 

*  17  Am.  &  Eng.  Enc.  of  Law,  320. 
«  In  re  Moore,  31  Pac.  Rep.  980. 

'  Ante,  sec.  29 ;  State  v.  Sloss,  25  Mo.  291 ;  69  Am.  Dec.  467. 


744       COMMON  LAW,  EQUITY,  AND  STATUTORY  JURISDICTION. 

As  a  rule,  the  power  to  pardon  is  withheld,  by  the  con- 
stitution, from  cases  of  impeachment  and  of  treason. 

The  power  may  be  exercised  before  or  after  conviction,' 
and  after  the  offense  has  been  fully  expiated,^  and  in  favor 
of  one  person  by  name,  or  of  a  class  of  persons,  or  of  all 
persons  who  may  be  guilty  of  certain  offenses,^  and  in- 
cludes the  power  to  pardon  absolutely,  or  conditionally, 
and  entirely,  or  only  partially.* 

Under  the  constitutions  of  some  of  the  states,  the  power 
to  pardon  can  not  be  exercised  until  after  conviction;^  and 
it  is  held,  under  such  a  limitation  of  the  power,  that  the 
verdict  of  the  jury  is  a  conviction,  and  the  pardon  may  be 
granted  before  judgment  or  after  an  appeal,  by  which  the 
judgment  is  in  effect  vacated.® 

It  is  not  a  power  that  can  be  enforced,  as  against  one  in 
whose  favor  it  is  exercised,  but  he  may  accept  or  refuse  a 
pardon  offered  him  at  his  option.^ 

If  the  pardon  is  conditional,  the  conditions  must  be  per- 
formed by  its  recipient,  whether  such  conditions  be  prece- 
dent or  subsequent,  or  the  pardon  will  become  void  ;^  and 
for  a  violation  of  the  condition  the  convict  may  be  re- 
manded to  prison  to  serve  out  his  term,  although  the  term 
for  his  imprisonment  has  expired  since  his  release.^ 

A  pardon  once  granted  and  accepted  can  not  be  revoked, 
except  it  be  conditional  and  the  condition  has  been  violated.^** 

1  17  Am.  &  Eng.  Enc.  of  Law,  320 ;  8  Am.  Law  Reg.  (N.  S.)  516;  State 
V.  Woolery,  8  Mo.  .300. 

2  State  V.  Foley,  15  Nev.  64;  37  Am.  Rep.  458. 
'  Ex  parte  Garland,  4  Wall.  333. 

*  17  Am.  &  Eng.  Enc.  Law,  320;  United  States  v.  Wilson,  7  Pet.  150; 
Ex  Parte  Wells,  18  How.  307;  Osborn  v.  United  States,  91  U.  S.  474; 
State  V.  Barnes,  32  S.  Car.  14 ;  10  S.  E.  Rep.  611 ;  Ex  parte  Janes,  1  Nev. 
319. 

5  State  V.  Alexander,  76  N.  Car.  231 ;  22  Am.  Rep.  675. 

s  State  V.  Alexander,  76  N.  Car.  231 ;  22  Am.  Rep.  675  ;  Commonwealth 
V.  Lockwood,  109  Mass.  323 ;  12  Am.  Rep.  699. 

'  United  States  v.  Wilson,  7  Pet.  150. 

8  Ex  parte  Janes,  1  Nev.  319 ;  Ex  parte  Marks,  64  Cal.  29 ;  28  Pac.  Rep. 
109. 

9  State  V.  Barnes,  32  S.  Car.  14;  10  S.  E.  Rep.  611. 

">  Rosson  V.  Stehr,  23  Tex.  App.  287 ;  4  S.  W.  Rep.  897. 


I 

I 


PARDONS.  745 

In  some  of  the  states  the  governor  or  other  pardoning 
power  has  iinhmited  power  to  determine,  without  a  hear- 
ing, whether  the  condition  upon  which  a  pardon  has  been 
granted  has  been  violated,  and  to  order  the  one  to  whom 
the  pardon  was  granted  recommitted  to  prison ;  but  in 
other  states  the  party  is  entitled  to  a  hearing  upon  the 
question  whether  he  has  violated  the  condition  of  the 
pardon  or  not. 

Where  an  examination  is  required  on  the  part  of  the 
governor,  it  has  been  held  that  notice  to  the  convict  is  not 
necessary;'  but  the  better  rule  on  the  subject  is  that  the 
convict  is  entitled  to  notice  and  a  hearing  upon  the  ques- 
tion whether  he  has  violated  the  conditions  of  his  pardon 
or  not,  and  that  a  statute  which  authorizes  the  summary 
recaption  and  imprisonment  of  such  convict  without  such 
notice  and  hearing  is  unconstitutional.^  A  different  rule 
must  prevail  where  the  prisoner  is  out  on  parol,  granted 
by  the  governor,  as  he  is  still  a  prisoner.^ 

In  some  of  the  states  it  is  provided  by  statute  that 
prisoners  shall  be  entitled  to  certain  deductions  from  their 
terms  of  imprisonment  imposed  by  the  judgment  of  con- 
viction for  good  behavior  while  in  prison.  Such  statutes 
are  not  infringements  upon  the  pardoning  power,  although 
they  may  have  the  same  effect  as  a  pardon.* 

A  pardon  procured  by  fraud  is  void.^ 

^  Kennedy's  case,  135  Mass.  48. 

2  People  V.  Moore,  62  Mich.  496 ;  29  N.  W.  Rep.  80 ;  see,  also.  State  v. 
Wolfer,  54  N.  W.  Rep.  1065. 

3  Woodward  v.  Murdock,  124  Ind.  439  ;  24  N.  E.  Rep.  1047. 
*  Ex  parte  Wadleigh,  82  Cal.  518  ;  23  Pac.  Rep.  190. 

»  Commonwealth  v.  Halloway,  44  Pa.  St.  210 ;  84  Am.  Dec.  431. 


M 


INDEX. 


(the  references  are  to  both  the  sections  and  pages.) 

(Note. — The  whole  book  has  been  carefully  indexed  under  the  one  title  "  Jurisdic- 
tion," besides  the  indexing  under  sub-heads,  and  the  subjects  of  the  sections  are 
indicated  by  black  type  in  this  general  index,  so  that  if  any  matter  has  been 
omitted  from  its  appropriate  place  elsewhere,  it  can  be  easily  traced  and  found  un- 
der Jurisdiction.) 


A 

Abatement.     (See  Plea  in  Abatement.) 

of  nuisance  when  constructive  notice  allowed  in  action  for,  sec.  38, 

p.  270 

Acceptance  of  Service.    (See  Service  of  Process.) 

of  process,  what  sufficient  as  proof  of  service,  sec.  39,  p.  291 

Account- 
running,  can  not  be  divided  to  bring  amount  within  jurisdiction,  sec. 

16,  p.  62 

footing  of  controls  in  determining  jurisdiction  as  to  amount,  sec.  16, 
p.  60 

Actions.     (See  Personal  Actions.) 

affecting  title  to  real  estate  are  local,  sec.  12,  p.  35 

personal  are  transitory,  sec.  12,  p.  35 

may  be  brought  where  plaintiff  and  defendant  reside,  though  cause 

arose  elsewhere,  sec.  12,  p.  35 
transitory,  exception  in  case  of  corporations,  sec.  12,  p.  35 
■where  plaintifiF  is  resident  of  state,  defendant  not,  may  be  brought 

in  any  county,  sec.  12,  p.  30 
for  divorce  residence  of  plaintiff  gives  jurisdiction,  sec.  12,  p.  36;  sec. 

73,  p.  513.     (See  Divorce.) 
non-resident  may  maintain,  sec.  13,  p.  43 
action  defined,  sec.  68,  p.  461 
distinctions  between,  and  special  cases  and  special  proceedings,  sec. 

68,  pp.  461-469 

Adjournment  of  Court.    (See  Terms  of  Court.) 
final,  ends  powers  of  court  for  term,  sec.  19,  p.  84 
premature,  by  sheriff,  judge  may  hold  court  balance  of  term,  sec.  19, 

p.  84 
to  wrong  time,  or  without  fixing  time,  effect  on  jurisdiction,  sec.  24, 

p.   149 
not  authorized  by  law,  effect  of,  sec.  24,  p.  149 

Admiralty  and  Maritime  Jurisdiction- 
Courts  of,  in  England,  superseded  by  supreme  court  of  judicature, 

sec.  3,  p.  3 
jurisdiction  in,  belongs  to  U.  S.  district  courts,  sec.  17,  p.  73 
jurisdiction   of  district  courts  in,  extends  to  navigable  lakes  and 

streams,  sec.  17,  p.  73 
state  court  has  jurisdiction  to  decree  common-law  remedy  in,  sec. 

17,  p.  73 

(747) 


748  INDEX. 

Admiralty  and  Maritime  Jurisdiction— Cbn^mueo?. 
conferred  by  constitutions  and  statutes,  sec.  10,  p.  29 
of  federal  courts  not  confined  to  tide  waters,  sec.  17,  p.  73 
extends  to  other  navigable  lakes  and  streams,  sec.  17,  p.  73 
generally  belongs  exclusively  to  federal  courts,  sec.  70,  p.  483 
but  state  courts  not  wholly  without,  sec.  70,  p.  483 

but  not  strictly  speaking  admiralty  jurisdiction,  sec.  70,  p.  484 
confined  to  interior  navigation,  where  no  interstate  or  foreign  com- 
merce, sec.  70,  p.  484 
over  such   navigation  federal   courts  have   no  jurisdiction,  sec.  70, 

p.  484 
claims  against  vessels   not  maritime  within  jurisdiction  of  state 

courts,  sec.  70,  p.  484 
liens  provided  by  state  laws  when  enforceable  in  federal  courts,  sec. 

70,  p.  484 
when  enforceable  in  state  courts,  sec.  70,  p.  484 
depends  upon  character  of  contract,  sec.  70,  p.  484 
when  discretionary  with  federal  court  whether  to  enforce  or  not, 

sec.  70,  p.  485 
in  regulation  of  commerce  congress  may  provide  for  liens,  sec.  70, 

p.  485 
but,  if  does  not,  states  may,  sec.  70,  p.  485 
when  states  may  regulate  fisheries,  sec.  70,  p.  485 
states  can  not  by  providing  for  liens  extend  jurisdiction  of  federal 

courts,  sec.  70,  p.  485 
nor  can  courts  decline  to  enforce  because  provided  for  by  state,  sec. 

70,  p.  485 
may  enforce   state  lien  on   domestic   vessel,  though  maritime  law 

would  only  give  on  foreign  vessel,  sec.  70,  p.  485 
but  state  courts  can  not  enforce  lien  on  vessel  engaged  in  foreign 

commerce,  sec.  70,  p.  485 
but  may  against  vessels  navigating  inferior  streams  and  not  engaged 

in  foreign  or  interstate  commerce,  sec.  70,  p.  486 
general  rule  that  admiralty  jurisdiction  confined  to  tide  waters  to 

the  ebb  and  flow,  sec.  70,  p.  486 
but  federal  courts  extend  to  navigable  lakes  and  rivers  above  tides 

where  commerce  carried  on  between  different  states  or  with  for- 
eign nation,  sec.  70,  p.  486 
common-law  remedy  growing  out  of  maritime  transaction  may  be 

administered  by  state  court,  sec.  70,  p.  486 
fact  that  common-law  remedy  aided  by  lien  does  not  affect  jurisdic- 
tion, sec.  70,  pp.  486,  487 
Administrators.     (See  Probate  Jurisdiction;  Sales  of  Real  Estate.) 
question  of  validity  of  appointment  of,  how  raised  in  case  of  sale  of 

real  estate  by,  sec.  76,  p.  556 
whether  in  such  case  appointment  of,  can  be  collaterally  attacked, 

sec.  76,  pp.  556,  557 
what  is  necessary  to  give  court  jurisdiction  to  order  sale  of  real  estate 

by,  sec.  76,  pp.  557,  558 
petition  foundation  of  jurisdiction,  sec.  76,  p.  558 
what  petition  must  show,  sec.  76,  pp.  558,  559 
order  of  sale  an  adjudication  of  all  jurisdictional  facts,  sec.  76, 

p.  560 
notice  must  be  given,  sec.  76,  p.  563 
whether  heirs  necessary  parties,  sec.  76,  p.  564 


INDEX,  749 

Affidavit— 

for  publication,  can  not  control  as  to  jurisdiction  against  matters  ap- 
pearing in  judgment  roll,  sec.  25,  p.  164 
for  publication  of  constructive  notice,  what  must  show,  sec.  38,  pp. 
271-279 
making  of,  is  jurisdictional  step,  sec.  38,  p.  271 
substantial  compliance  with  statute  necessary,  sec.  38,  pp.  271-273 
when  judgment  rendered  under,  void,  sec.  38,  pp.  271,  272 
not  a  part  of  judgment  roll,  sec.  38,  p.  273 
how  due  diligence  in  effort  to  make  personal  service  must  be 

shown  in,  sec.  38,  p.  275 
when  statements  on  information  and  belief  sufficient,  sec.  38,  pp. 

276,  277 
when  may  be  amended,  sec.  38,  p.  279 
of  publication  of  constructive  notice,  what  must  show,  sec.  38,  pp. 
285,  286.     (See  Constructive  Service.) 
failure  to  make  effect  of,  sec.  38,  p.  285 
by  whom  may  be  made,  sec.  38,  p.  285 
of  personal  service,  when  proper,  sec.  39,  p.  287 

what  must  be  shown  by,  sec.  39,  p.  288 
for  change  of  venue,  who  may  be  made  by,  sec.  47,  p.  340 
what  must  show,  sec.  47,  p.  340;  sec.  48,  p.  343 
may  be  amended,  sec.  47,  p.  340 
in  contempt  proceedings,  when  necessary,  and  what  must  show,  sec. 

72,  pp.  492,  493.     (See  Contempts.) 
necessary  in  attachment,  sec.  74.  p.  523.     (See  Attachment.) 
what  must  show,  sec.  74,  pp.  524-528,  529-534 
who  may  make,  sec.  74,  p.  528 
in  garnishment,  sec.  75,  p.  549.     (See  Garnishment.  ) 
in  ne  exeat  and  arrest  and  bail,  sec.  78,  p.  586.     (See  Ne  Exeat  and 
Arrest  and  Bail.) 
may  be  amended,  sec.  78,  p.  587 

Agreed  Statement- 
may  by  consent  take  place  of  pleadings  and  give  jurisdiction,  sec. 

12,  p.  33 
affidavit  that  controversy  real  necessary,  sec.  12,  p.  33 
Alimony.     (See  Divorce.) 

Amendment.     (See  Complaint,  Judgment,  Jurisdiction,  Pleadings.) 
ot  complaint  after  service  by  publication,  judgment  by  default  on, 

void,  sec.  8,  p.  22 
new  notice  must  be  given,  sec.  14,  p.  49 

court  has  inherent  power  to  amend  its  record,  sec.  27,  p.  181 
of  notice  of  appearance,  when  may  be  made,  sec,  34,  p.  227 
of  proceedings  in  attachment,  sec.  74,  pp.  544-545 
Appeal.     (See  Appellate  Jurisdiction.) 

appellate  court   having  original  jurisdiction  of  subject-matter,  but 
lower  court  not,  and  parties  appear,  judgment  of  former  binding, 
sec.  12,  p.  34 
right  of  is  statutory  and  may  be  extended  by  statute,  sec.  21,  p.  98 
and  statute  must  be  followed,  sec.  21,  p.  99 

time  for  can  not  be  extended  by  parties  nor  by  court,  sec.  21.  p.  99 
in  some  states,  time  does  not  run  against  parties  under  legal  disabili- 
ties, sec.  21,  p.  99 
when  constitutes  a  waiver  by  appearance,  sec.  22,  p.  110 
question  of  jurisdiction,  how  may  be  raised  on,  sec.  22,  p.  112 
effect  of  on  jurisdiction  of  court,  sec.  24,  p.  150 
effect  of  on  judgment  appealed  from,  sec.  24,  p.  150 


750  INDEX. 

Appea,! —  Continued. 

death  of  party  on  when  new  parties  must  be  made,  sec.  42,  p.  307 
where  judgment  is  joint,  must  be  taken  within  time  by  all  judgment 

defendants,  sec.  21,  p.  99 
if  any  refuse  to  join  and  notice  required,  same  must  be  given  or  ap- 
peal is  ineffectual,  sec.  21,  p.  99 
appearance  and  failure  to  join  will  not  waive  such  notice,  sec.  21,  p.  99 
where  has  failed  through  failure  to  observe  requisites,  second  may 

be  prosecuted,  sec.  21,  p.  100 
can  be  no  second  when  first  is  pending,  sec.  21,  p.  100 
where  is  allowed  on  some  action  of  lower  court,  such  action  must  be 

shown,  sec.  21,  p.  100 
where  record  shows  that  court  has  not  jurisdiction  will  be  dismissed, 

sec.  21,  p.  100 
where  question  of  jurisdiction  depends  upon  proceedings  below,  rec- 
ord is  conclusive,  sec.  21,  p.  100 
consent  of  parties  will  not  give  right  to  determine  other  questions, 

sec.  21,  p.  100 
where  record  shows  subject-matter  out  of  jurisdiction,  consent  can 

not  give,  sec.  21,  p.  100 
can  not  be  taken  by  consent  to  court  not  having  jurisdiction,  sec.  21, 

p.  100 
actual  controversy  must  appear,  sec.  21,  p.  101 
will  lie  only  from  decision  of  a  court,  sec.  21,  p.  101 
will  lie  only  from  decision  upon  judicial  question,  sec.  21,  p.  101 
assignment  of  errors  to  be  filed,  sec.  21,  p.  101 
same  must  be  filed  in  statutory  time,  sec.  21,  p.  101 
except  where  prevented  by  fraud,  etc.,  sec.  21,  p.  101 
lower  court  must  have  had  jurisdiction  of  subject-matter,  sec.  21,  p.  102 
where  trial  de  novo,  amendment  of  complaint  to  increase  amount 
above  jurisdiction  of  lower  court  will  divest  jurisdiction  of  ap- 
peal, sec.  21,  p.  102 
origin  of  the  right  of,  sec.  88,  p,  728 
is  now  wholly  statutory,  sec.  88.  p.  728 
what  may  be  reviewed  by,  sec.  88,  pp.  728-730 
how  jurisdiction  in  given,  sec.  88,  p.  730 
not  proper  to  remove  cause  from  state  court  to  supreme  court  of 

United  States,  sec.  88,  p.  730 
when  remedy  must  be  sought,  sec.  88,  p.  730 
courts  can  not  extend  time  given  by  statute,  sec.  88,  p.  731 
generally  will  only  lie  from  final  judgments,  sec.  88,  p.  731 
but  provided  otherwise  in  some  states,  sec.  88,  pp.  731,  732 
right  of  appeal  in  all  cases  depends  upon  the  statute,  sec.  87,  p.  732 
may  be  taken  from  part  of  judgment,  sec.  88,  p.  732 
notice  of  appeal  required,  sec.  88,  pp.  732,  733,  734 
notice  to  co-parties  when  necessary  and  objects  of,  sec.  88,  pp.  732, 

733 
who  must  be  joined  in  the  appeal,  sec.  88,  p.  733 
notice  in  what  cases  dispensed  with,  sec.  88,  p.  733 
notice  may  be  waived,  sec.  88,  p.  733 
who  must  be  notified,  sec.  88,  pp.  733,  734 

bond,  when  required  and  effect  of  failure  to  give,  sec.  88,  p.  734 
affidavit  on  appeal  when  necessary,  and  effect  of  failure  to  make, 

sec.  88,  p.  734 
provision  usually  made  for  amendment,  sec.  88,  p.  734 
record  on  appeal,  what  must  contain,  sec.  88,  p.  735 
motion  for  new  trial,  when  necessary  as  foundation  for,  sec.  88,  p.  735 


I 


INDEX.  751 

Appeal — Continued. 
assignment  of  errors,  necessity  for  and  when  must  be  filed,  sec.  88, 

p.  735 
requirements  of  statute  are  limitations  upon  jurisdiction,  sec.  88, 

p.  736 
only  questions  presented  by  the  record  can  be  considered,  sec.  21, 
p.  100:  sec.  88,p.  736 
exceptions,  sec.  88,  p.  736 
effect  of  appeal  on  jurisdiction  of  court  below,  sec.  88,  p.  736 
inherent  powers  of  appellate  courts,  sec.  88,  p.  736 
may  be  prevented  from  acting,  when  and  how,  sec.  88,  p.  736 
jurisdiction  can  not  be  given  by  consent,  sec.  88,  p.  737 
Appearance.     (See  Jurisdiction.) 

special,  what  constitutes,  sec.  13,  p.  37;   sec.  22,  p.  110 

special,  mode  of,  in  England,  sec.  13,  p.  38 

by  unauthorized  attorney,  effect  of,  sec.  13,  p.  38 

by  attorney  presumed  to  be  authorized,  sec.  13,  p.  41 

record  showing,  not  conclusive,  sec.  13,  p.  41 

subsequent,  will  not  validate  proceeding  against  non-resident,  sec.  13, 

p.  41;   sec.  22,  p.  i04 
can  not  be  entered  for  minor,  sec.  13,  p.  43 
general,  waives  service  of  process  and  objection   to  jurisdiction  of 

person,  sec.  22,  p.  103 
special,  to  object  to  jurisdiction,  does  not,  sec.  22,  p.  103 
general,  after  special  and  objection  to  jurisdiction  overruled  a  waiver, 

sec.  22,  pp.  103,  104 
party  wishing  to  object  to  jurisdiction  must  keep  out  of  court  after 

special  and  objection  overruled,  sec.  22,  p.  104 
resident  defendant  made  party  fraudulently  to  give  jurisdiction,  ef- 
fect of,  sec.  22,  p.  104 
after  default  and  motion  to  set  aside  judgment  not  a  waiver,  sec.  22, 

p.  105 
nor  to  contest  amount  of  damages  after  default,  sec.  22,  pp.  105,  106 
what  is  an  appearance,  sec.  34,  p.  225 
different  kinds  of,  sec.  34,  p.  225 

general,  what  is,  and  its  effect,  sec.  34,  pp.  225,  227-229,  231,  233 
must  be  done  in  court,  sec.  34,  p.  225 
appearance  for  removal  of  cause  to  federal  court,  effect  of,  sec.  34, 

pp.  226,  227 
special  appearance  and  its  effects,  sec.  34,  pp.  227,  228,  231,  234 
withdrawal  of  pleading  does  not  withdraw  appearance,  sec.  34,  p.  227 
difference  between   illegal  service  and  want  of  service,  as  to  effect 

of  appearance,  sec.  34,  p.  229 
appeal,  effect  of,  as  appearance,  sec.  34,  pp.  229-231 
answer,  when  not  a  general  appearance,  sec.  34,  p.  232 
want  of  jurisdiction   of  subject-matter  can  not  be  waived,  sec.  34, 

p.  232 
special  appearance  gives  jurisdiction  in  some  states,  sec.  34,  p.  232 
and  applies  to  non-resident  served  out  of  state,  sec.  34,  p.  232 
but  doctrine  exceptional,  sec.  34,  p.  232 
effect  of  code  provisions  as  to  effect  of  appearance,  sec.  34,  pp.  232,  233 
withdrawal  of  attorney  withdraws  pleadings,  sec.  34,  p.  233 
effect  of  unauthorized  appearance,  sec.  34,  p.  233 
effect  of  appearance  in  main   action  upon  auxiliary  proceeding,  sec. 

34,  pp.  233,  234 
appearance  can  not  be  entered  for  minor  without  service  of  process, 
sec.  34,  p.  234 


752  INDEX. 

Appellate  Courts.     (See  Appeals;    Appellate  Jurisdiction.) 
bow  notice  given  to  vest  with  jurisdiction,  sec.  35,  p.  239 
power  of,  to  issue  injunctions,  sec.  79,  pp.  589,  595 
power  of,  to  issue  writs  of  mandamus,  sec.  80,  pp.  625-627 
power  of,  to  issue  writs  of  prohibition,  sec.  81,  pp.  630,  637 
Appellate  Jurisdiction.     (See  Appeals;  Jurisdiction;  Original  Juris- 
diction.) 
when  court  has,  of  subject-matter,  on  appeal  from  court  not  having, 

sec.  12,  p.  34 
as  to  amount,  how  amount  in  controversy  determined,  sec.  16,  pp. 

64-67 
defined,  sec.  21,  pp.  97,  98 

usually  extends  only  to  final  judgments  and  orders,  sec.  21,  p.  98 
sometimes  to  interlocutory  decrees  and  orders,  sec.  21,  p.  98 
court  may  be  vested  with  both  original  and,  sec.  21,  p.  98 
courts  of,  possessed  of  inherent  and  incidental  powers,  sec.  21,  p.  98 
steps  necessary  to  give,  provided  by  statute,  sec.  21,  p.  99 

and  must  appear  of  record  to  have  been  taken,  sec.  21,  p.  99 
time  of  appeal  can  not  be  extended  by  consent,  sec.  21,  p.  99 
when  depends  upon  proceedings  of  trial  court,  record  of,  conclusive, 

sec.  21,  p.  100 
exists  only  as  to  questions  appearing  of  record,  sec.  21,  p.  100 

questions  not  of  record  can  not  be  presented  by  consent,  sec.  21, 

p.  100 
if  record  shows  want  of,  as  to  subject-matter,  consent  of  parties  can 

not  give,  sec.  21,  p.  100 
appeal  can  not  be  taken  to  court  not  having,  by  consent,  sec.  21,  p. 

101 
assignment  of  errors  when  necessary  to  confer,  sec.  21,  p.  101 
must  be  filed  within  time  required,  sec.  21,  p.  101 
when  party  relieved  from  failure  to  file  in  time,  sec.  21,  p.  101 
to  give,  court  below  must  have  had  jurisdiction  of  subject-matter, 

sec.  21,  p.  102 
amendment  of  complaint,  when  deprives  court  of,  sec.  21,  p.  102 
means  of  giving  notice  of  appeal,  sec.  35.  p.  239 
to  issue  injunction,  sec.  79,  pp.  589,  595-600,  606 
to  issue  writs  of  mandamus,  sec.  80,  pp.  625-627 
to  issue  writ  of  prohibition,  sec.  81,  p.  637 
in  cases  of  direct  appeals,  sec.  88,  pp.  727-737.     (See  Appeals.) 

Arbitration. 

defined,  sec.  77,  p.  572 

two  kinds,  common  law  and  statutory,  sec.  77,  p.  572 

common  law  submission  may  be  by  parol,  sec.  77,  p.  572 

statutory  must  be  in  writing,  sec.  77,  p.  572 

common  law  stands  upon  decision  of  arbitrators,  sec.  77,  p.  572 

statutory  award  usually  required  to  be  reported  to  and  confirmed  by 

some  court,  sec.  77,  p.  573 
no  particular  form  of  submission  necessary  in  former,  sec.  77,  p.  573 
latter  must  conform  to  statute,  sec.  77,  p.  573 
when  defective  statutory  may  be  upheld  as  common  law,  sec.  77,  p. 

573 
subject  involves  powers  of  arbitrators,  sec.  77,  p.  573 
and  effect  of  submission  of  pending  actions  on  jurisdiction  of  court 

over,  sec.  77,  p.  573 
also,  in  statutory,  of  power  of  court  to  confirm,  sec.  77,  p.  573 
submission  is  measure  and  limitation  of  powers  of  arbitrators,  sec. 

77,  p.  574 


I 


INDEX.  753 

Arbitration—  Continued. 

and  this  is  true  of  submission  of  matters  in  court,  sec.  77,  p.  574 
but  subject  to  right  of  contestants  to  submit  under  statute,  sec.  77, 

p.  574 
matters  in  court  all  parties  must  consent,  sec.  77,  p.  574 
applies  to  statutory,  sec.  77,  p.  574 
parties  entitled  to  notice,  sec.  77,  p.  574 

arbitrators  must  meet  at  time  named  in  submission,  sec.  77,  p.  574 
parties  must  have  opportunity  to  be  present,  sec.  77,  p.  574 
notice,  how  waived,  sec.  77,  pp.  574,  575 
arbitrators  limited  as  to  time  by  submission,  sec.  77,  p.  575 
award  after  time  inoperative,  sec.  77,  p.  575 

and  returned  to  court  too  late  court  can  not  confirm,  sec.  77,  p.  575 
failure  to  meet  at  time  appointed,  effect  of,  sec.  77,  p.  575 
powers  expire  with  making  award,  sec.  77,  p.  575 
can  not  alter  or  change  award,  sec.  77,  p.  575 
or  make  a  new  one  where  first  is  void,  sec.  77,  p.  575 
attempt  to  change,  effect  of,  sec.  77,  p.  575 
statute  requiring  submission  to  fix  time  of  award,  effect  of,  sec.  77, 

pp.  575,  576 
power  to  appoint  umpire,  sec.  77,  p.  576 
award  when  may  be  in  parol,  sec.  77,  p.  576 
statutory  must  conform  to  statute,  sec.  77,  p.  576 
award  must  cover  whole  subject-matter  submitted,  sec.  77,  p.  576 
what  must  be  shown  to  impeach  for  not  including  all,  sec.  77,  pp. 

576,  577 
submission  of  all  matters  in  dispute,  effect  of,  sec.  77,  p.  577 
whether  award  may  be  good  in  part  and  bad  in  part,  sec.  77,  p.  577 
presumption  in  favor  of  award,  sec.  77,  p.  577 
what  court  may  receive  and  confirm  award,  sec.  77,  p.  577 
submission,  providing  it  be  made  rule  of  court  not  having  jurisdic- 
tion, whole  proceeding  void,  sec.  77,  p.  578 
statute  not  complied  with  court  has  no  jurisdiction,  sec.  77,  p.  578 
but  may  be  good  as  common  law  arbitration,  sec.  77,  p.  578 
effect  of  failure  to  confirm,  sec.  77,  p.  578 
parties  may  waive  confirmation,  sec.  77,  p.  578 
notice  of  time  of  confirmation  necessary,  sec.  77,  p.  578 
kind  of  notice  required,  sec.  77,  p.  578 

whether  majority  of  arbitrators  may  make  award,  sec.  77,  p.  579 
effect  of  submission  of  pending  action,  sec.  77,  pp.  579,  580 
agreement  to  arbitrate  does  not  deprive  court  of  jurisdiction,  sec. 

77,  p.  580 
what  necessary  to  authorize  courts  to  render  judgment  on  award,  sec. 

77,  p.  580 
appeal  may  be  taken  from  such  judgment,  sec.  77,  p.  580 
reference  of  pending  action  to  referee,  effect  of,  sec.  77,  p.  581 
effect  of  judgment  on  award,  sec.  77,  p.  581 
whether  arbitrator  must  be  sworn,  sec.  77,  p.  581 
Arrest  and  Bail.     (See  Ne  Exeat  and  Arrest  and  Bail.) 

Arrest  of  Judgment — 

when  objection  to  jurisdiction  presented  by  motion  in,  sec.  22,  pp. 
109,  112. 

Assessment— 

for  public  improvements,  at  what  stage  owner  entitled  to  be  heard, 

sec.  33,  p.  220 
statute  making  action  conclusive  without  notice,  void,  sec.  33,  p.  220 
for  taxes,  general  notice  suflBcient,  sec.  33,  p.  221. 

48 


754  INDEX. 

Assignment  of  Errors.     (See  Appeals;  Appellate  Jurisdiction.) 
when  necessary  to  give  appellate  court  jurisdiction,  sec.  21,  p.  101 
is  the  pleading  of  the  appellant,  sec.  21,  p.  101;  sec.  85,  p.  696 
must  be  filed  within  time  fixed  by  statute,  sec.  21,  p.  101 
when  party  relieved  from  effect  of  failure  to  file  in  time,  sec.  21,  p. 

101 
when  question  of  jurisdiction  may  be  raised  by,  sec.  22,  pp.  113,  114 
rule  different  in  federal  and  state  courts,  sec.  22,  pp.  113,  114 
is  foundation  and  limitation  of  jurisdiction  on  writ  of  error,  sec.  85, 

p.  696 

Assistant  Jurisdiction— 

of  courts  of  equity,  sec.  9,  pp.  25,  28  note  1 

examination  of  witnesses  de  bene  esse,  discovery,  perpetuation  of 

testimony,  sec.  9,  p.  25;  sec.  18,  p.  74 
superseded  by  statutory  provisions  and  remedies,  sec.  9,  p.  25 ;  sec. 

18,  pp.  74-76 
courts  of  equity  may  aid  courts  of  law  by  injunction,  sec.  17,  pp.  71, 

72;  sec.  18,  p.  74 
not  concurrent  jurisdiction,  sec.  18,  p.  18 
when  assistant  jurisdiction  will  be  exercised,  sec.  18,  p.  80 
how  far  has  been  taken  away  by  statutory  remedies  to  be  granted  by 

law  courts,  sec.  18,  pp.  74-81 

Attachment— 

in  nature  of  but  not  strictly  proceeding  in  rem.,  sec.  14,  p.  47;  sec.  74,       5' 

P-5^8  .  .     .  ,^' 

levy  of  writ  necessary  to  give  jurisdiction  over  specific  property,  sec.       .^ 

14,  pp.  45,  46  ''' 

essentially  proceedings  in  rem.  where  defendant  not  personally  served, 

sec.  14,  p.  47 
possession  of  property  must  be  maintained  or  jurisdiction  lost,  sec. 

14,  p.  47 
personal  service  within  state  on  non-resident  gives  full  jurisdiction, 

sec.  14,  p.  48 
seizure  of  property  and  notice  to  defendant  both  necessary,  sec.  14 

p.  48 
jurisdiction  over  property  limited  to  application  of  it  to  payment  of 

debt,  sec.  14,  p.  48 
only  persons  notified  affected  by  judgment,  sec.  14,  p.  49 
constructive  notice  allowed,  sec.  14,  p.  50 
remedy  unknown  to  common  law,  sec    14,  p.  50 
defined,  sec.  74,  p.  518 
not  a  common-law  remedy,  sec.  74,  p.  518 

originated  in  custom  of  foreign  attachment  in  Londarn,  sec.  74,  p.  518 
at  present  day,  remedy  entirely  statutory,  sec.  74,  p.  518 
seizure  of  property  alone  not  sufficient  to  authorize  court  to  proceed, 

sec.  74,  p.  518 
notice  also  necessary,  sec.  74,  p.  518 
in  this,  differs  from  custom  of  London,  sec.  74,  p.  519 
no  part  of  equity  powers  of  court  of  chancery,  sec.  74,  p.  519 
but  conferred  upon  such  courts  by  statute,  sec.  74,  p.  519 
remedy  is  incidental  to  recovery  of  judgment  in  main  action,  sec. 

74^  p.  519 
is  denominated  a  provisional  remedy,  sec.  74,  p.  519 
if  main  action  fails,  attachment  falls,  sec.  74,  p.  519 
where  defendant  non-resident,   not  personally  served,  attachment 

fails,  whole  case  at  an  end,  sec.  74,  p.  519 


I 


INDEX.  755 

Attachment — Continued. 

defendant  non-resident,  and  constructive  service,  proceeding  one  in 
rem.,  sec.  74,  p.  519 
and  property  attached  alone  subject  to  judgment,  sec.  74,  p.  519 
in  such  case,  attachment  upholds  main  action,  sec.  74,  p.  520 
attachment  proceeding,  how  far  independent  of  main  action,  sec.  74, 

p.  520 
non-resident  creditor  may  have  attachment,  sec.  74,  p.  520 
proceeding  extraordinary  and  limited  by  statute,  sec.  74,  p.  520 
and  confined  strictly  within  limits  by  courts,  sec.  74,  p.  520 
how  strictly  statutes  must  be  complied  with,  sec.  74,  p.  520 
requirements  differ  in  diflferent  states,  sec.  74,  p.  520 
when  may  issue,  sec.  74,  pp.  521,  523 

general  grounds,  and  showing  upon  which  allowed,  sec.  74,  pp.  520, 
521 

1.  an  action  in  which  an  attachment  is  allowed  must  be  commenced  and 

pending,  sec.  74,  p.  521 
what  kinds  of  actions  may  be  aided  by,  sec.  74,  p.  522 
generally  confined  to  actions  on  contract,  sec.  74,  p.  522 
includes  actions  for  unliquidated  damages,  sec.  74,  p.  522 
but  not  so  in  some  states,  sec.  74,  p.  522 

sometimes  where  debt  was  fraudulently  contracted,  sec.  74,  p.  522 
and  for  damages  for  torts  in  some  states,  sec.  74,  p.  523 
what  is  action  on  contract,  sec.  74,  p.  523 
commencement  before  time  allowed,  effect  of,  sec.  74,  p.  523 

2.  grounds  upon  which  may  issue,  and  affidavit  necessary  to  sustain,  sec. 

74,  p.  523 
grounds  of,  generally,  sec.  74,  pp.  523,  524 

what  affidavit  must  show,  and  how  stated,  sec.  74,  pp.  524,  525 
affidavit  is  foundation  and  support  of  jurisdiction,  sec.  74,  p.  526 
failure  to  state  essential  fact,  proceeding  void,  sec.  74,  p.  526 
but  in  some  states  amendments  allowed,  sec.  74,  p.  526 
defect  in,  distinguished  from  failure  to  make,  sec.  74,  p.  526 
complaint  and  affidavit  may  be  combined,  when,  sec.  74,  p.  526 
same  affidavit  may  serve  for  attachment  and  publication,  sec.  74, 

p.  527 
whether  seizure  of  property  without  notice  gives  jurisdiction,  sec. 

74,  pp.  527,  528 
what  proceedings  are  jurisdictional,  sec.  74,  p.  528 
diflferent  parts  and  elements  of  affidavit: 

a.  by  whom  may  be  made,  sec.  74,  pp.  528,  529 
statutes  differ,  sec.  74,  p.  528 

under  some  must  be  made  by  plaintiff,  sec.  74,  p.  528 
others  may  be  by  attorney  or  agent,  sec.  74,  p.  528 
attorney  must  be  authorized  as  such  at  time,  sec.  74,  p.  528 
subsequent  ratification  insufficient,  sec.  74,  p.  528 
under  some  statutes  may  be  made  by  any  credible  person,  sec.  74, 
p.  529 

b.  averment  of  cause  of  action  and  amount  due,  sec.  74,  pp.  529,  530 
must  show  cause  of  action  in  which  attachment  allowed,  sec.  74, 

p.  529 
amount  due  must  be  alleged,  sec.  74,  p.  529. 
how  amount  due  may  be  shown,  sec.  74,  p.  529 
variance  between  complaint  and  affidavit  as  to  amount  due,  effect 

of,  sec.  74  p.  529 
contract  sued  on  need  not  show  amount  due  on  face,  sec.  74,  p.  529 
but  must  be  such  that  amount  can  be  ascertained,  sec.  74,  p.  529 


756  INDEX. 

Attacliment —  Continued. 

where  parties  may  be  sued  jointly,  but  liable  separately,  for  dif- 
ferent amounts,  amount  due  from  each  must  be  shown,  sec.  74, 
pp.  529,  530 
where  required  to  show  amount  due  over  counter  claim,  necessary 
averments,  sec.  74,  p.  530 

c.  presence  of  property  within  jurisdiction  of  court,  sec.  74,  pp.  530,  531 
affidavit  must  show  in  some  of  the  states,  sec.  74,  p.  530 

not  making  of  affidavit  but  actual  presence  of  property  that  gives 

jurisdiction,  sec.  74,  p.  530 
therefore  fact  if  alleged  may  be  controverted,  sec.  74,  p.  530 
allegation  not  always  required,  sec.  74,  p.  530 
but  fact  must  exist,  when,  sec.  74,  pp.  530,  531 

d.  non-residence  of  the  defendant,  sec.  74,  p.  531 
necessary  to  be  shown  in  some  states,  sec.  74,  p.  531 
against  joint  debtors  must  show  as  to  both,  sec.  74,  p.  531 

e.  absconding  debtors,  sec.  74,  p.  531 
concealment  ground  of  attachment,  sec.  74,  p.  531 

f.  fraudulent  disposition  or  removal  of  property,  sec.  74,  p.  531 

usually  allowed  to  be  made  on  information  and  belief,  sec.  74,  p. 

531 
but  grounds  of  belief  sometimes  require  to  be  stated,  sec.  74,  p. 

531 
question  one  of  fact  to  be  determined  on  hearing,  sec.  74,  p.  531 
must  appear  property  subject  to  execution,  when,  sec.  74,  pp.  531, 

532 
whether  necessary  to  aver  or  not  property  must  in  fact  be  subject 

to  execution,  sec.  74,  p.  532. 

g.  concealment  to  avoid  service  of  process,  sec.  74,  p.  532 
intention  material,  sec.  74,  p.  532 

therefore  must  show  concealment  with  intent  to  avoid  service,  sec. 

74,  p.  532 
but  intent  held  not  material  in  some  states,  sec.  74,  p.  532 
h.  debt  fraudulently  incurred,  sec.  74,  p.  532 

fraud  must  relate  to  time  of  making  the  contract,  sec.  74,  p.  532 
and  must  have  been  perpetrated  with  intent  to  procure  it,  sec.  74,^ 

p.  532 
what  constitutes  such  fraud,  sec.  74,  p.  532 
can  not  be  maintained  for  several  claims,  part  not  fraudulent,  sec. 

74,  p  533 
showing  of  negligence  not  sufficient,  sec.  74,  p.  533 
but  of  embezzlement  is,  sec.  74,  p.  533 
i.  obligations  criminally  incurred,  sec.  74,  p.  533 
by  commission  of  a  crime  is,  sec.  74,  p.  533 
j.  where  claim  sued  upon  is  not  due,  sec.  74,  p.  533 

only  allowed  on  showing  that  property  about  to  be  disposed  of  or 

removed,  sec.  74,  p.  533 
specific  grounds  must  be  shown  by  affidavit,  sec.  74,  p.  533 
non-residence  alone  not  sufficient,  sec.  74,  p.  533 
order  of  court  authorizing  issuance  of  writ,  when  necessary,  sec. 

74,  p.  533 
issued  by  clerk,  without  order,  void,  sec.  74,  p.  533 
k.  sources  of  information  as  to  facts  averred,  sec.  74,  p.  533 

when  fact.H  and  circumstances  showing  knowledge  must  be  stated, 

sec.  74,  p.  534 
1.  additional  averments  when  made  by  attorney  or  agent,  sec.  74,  p.  534 
absence  of  plaintiflf,  sec.  74,  p.  534 


INDEX.  757 

Attachment —  Continued. 

must  be  sustained  by  proof,  sec.  74,  p.  534 
must  show  knowledge  of  facts,  sec.  74,  p.  534 

3.  the  bond  or  undertaking,  sec.  74,  p.  534 

giving  of  necessary  to  uphold  attachment,  sec.  74,  p.  534 

but  not  required  in  all  cases,  sec.  74,  p.  534 

failure  to  give  held  irregularity  merely,  sec.  74,  p.  535 

and  does  not  affect  jurisdiction,  sec.  74,  p.  535 

held  otherwise  in  some  states,  sec.  74,  p.  535 

by  whom  must  be  executed,  sec.  74,  p.  535 

must  comply  with  statute,  sec.  74,  p.  535 

4.  the  writ  of  attachment,  sec.  74,  p.  535 

in  order  to  apply  jurisdiction  to  particular  property,  must  issue, 

sec.  74,  p.    535 
generally  issued  as  of  course  by  clerk,  sec.  74,  p.  536 
when  must  issue,  sec.  74,  p.  536 
what  must  contain,  sec.  74,  p.  536 

statutes  as  to  what  shall  contain,  mandatory,  sec.  74,  p.  536 
can  not,  without  statutory  authority,  be  amended,  sec.  74,  p.  536 

5.  levy  of  writ  and  proof  of  its  service,  sec.  74,  p.  536 

levy  of,  necessary  to  attach  jurisdiction  to  property,  sec.  74,  pp. 

536,  537 
from  that  time  property  made  subject  to  judgment,  if  rendered, 

sec.  74,  p.  536 
levy  vests  jurisdiction  of  subject-matter,  sec.  74,  p.  537 

held  in  some  cases  question  of  levy  not  jurisdictional,  sec.  74,  p. 

537 
return  of  officer  on,  what  must  show,  sec.  74,  p.  537 
where  no  personal  service,  jurisdiction  limited  to  property  levied 

on,  sec.  74,  p.  537 
possession  must  be  maintained,  sec.  74,  p.  537 

levy  and  notice  to  non-resident  both  necessary,  sec.  74,  pp.  537,  538 
when  writ  must  be  served,  sec.  74,  p.  538 
time  for  service  limited,  effect  of  concealment  of  defendant,  sec. 

74,  p.  538 
no  personal  service,  conditions  subsequent  to  levy  jurisdictional,  sec. 

74,  p.  538 
failure  to  comply  with,  renders  judgment  by  default  void,  sec.  74, 

p.  538 

6.  service  of  process  on  defendant,  sec.  74,  p.  538 

necessary  to  authorize  judgment  and  disposition  of  property,  sec. 

74,  p.  538 
personal  service  on  resident  defendant  generally  required,  sec.  74, 

p. ',539 
certain  time  given  to  obtain  personal  service,  constructive  before, 

void,  sec  74,  p.  539 
federal  courts,  on  foreign  attachment,  personal  service  necessary, 

sec.  74,  p.  539 
non-resident,  constructive  service  authorized,  sec.  74,  p.  539 
how  constructive  notice  given,  sec.  74,  p.  539 
if  time  for  service  limited  by  statute,  service  after,  void,  sec.  74, 

p.  539 
difference  in  effect  of  personal  and  constructive  service,  sec.  74, 

p.  539 
no  personal  judgment  on  constructive,  sec.  74,  pp.  539,  540 
only  authorizes  sale  of  property  attached,  sec.  74,  p.  540 
failure  to  give  notice,  effect  of,  sec.  74,  p.  540 


758  INDEX. 

Attachineilt — Continued. 

discrepancy  in  decisions  of  federal  and  state  courts  as  to  necessity 

of  notice,  sec.  74,  p.  540 
effect  of  insufficient  notice,  sec.  74,  p.  540 
difference  between  no  service  and  defective  service,  sec.  74,  p.  541  y 

writ  of  attachment  as  summons,  effect  of  quashing,  sec.  74,  p.  541         -^,. 
T^hen  personal  service  of  writ  of  attachment  necessary,  sec.  74,  p. 

541 
failure  to  serve  summons  in  time,  effect  on  attachment,  sec.  74,  p. 

541 

7.  proof  of  service  of  process,  sec.  74,  p.  541 

jurisdiction  does  not  depend  upon,  but  upon  service,  sec.  74,  p.  541 
how  proof  must  be  made,  sec.  74,  p.  541 

8.  ivaiver  of  defects  in  proceedings,  sec.  74,  p.  542  ' 
appearance  waived,  sec.  74,  p.  542 

objecting  on  certain  grounds,  others  waived,  sec.  74,  p.  542 
appearance  in  main  action,  effect  on  attachment,  sec.  74,  pp.  542 

543 
giving  delivery  bond,  effect  of,  as  waiver,  sec.  74,  p.  544 
and  agreement  that  property  may  be  sold,  sec.  74,  p.  544 
special  appearance,  effect  of,  sec.  74,  p.  544 

9.  amendments,  sec.  74,  p.  544 

of  attachment  proceeding  including  affidavit  authorized  by  stat- 
ute, sec.  74,  p.  544 
what  amendments  allowed,  sec.  74,  p.  544 
filing  of  new  affidavit  or  bond  permitted,  sec.  74,  p.  544 
federal  courts  liberal  in  allowing,  sec.  74,  p.  544 
must  be  something  to  amend,  sec.  74,  pp.  544,  545 
void  affidavit  can  not  be  amended,  sec.  74,  p.  545 
can  not  add  new  cause  of  attachment,  sec.  74,  p.  545 
return  of  officer  may  be  amended,  sec.  74,  p.  545 

10.  how  sufficiency  of  proceedings  may  be  tested,  sec.  74,  p.  545 
different  modes  of  testing,  sec.  74,  pp.  545,  546 

objection  must  be  made  before  final  judgment,  sec.  74,  p.  546 
reason  for  the  rule,  sec.  74,  p.  546 

time  of  motion  to  set  aside  sometimes  limited  by  statute,  sec.  74, 
p.  547 

11.  presumptions  in  favor  of  jurisdiction  in  attachment,  sec.  74,  p.  547 

Attorney- 
want  of  authority  of,  to  appear  can  not  be  shown  collaterally,  sec.  22, 

p.  121 
unauthorized  appearance  by,  effect  of,  sec.  13,  p.  38  J 

authority  of,  to  appear  presumed,  sec.  13,  p.  41 
may  act  as  judge,  when,  sec.  28,  p.  182 
courts  have  inherent  power  to  punish  for  contempt,  sec.  31,  p,  198 

extends  to  suspension  and  disbarment,  sec.  31,  p.  198 
entitled  to  notice  of  proceeding  to  suspend  or  disbar,  sec.  31,  p.  199 

causes  for  disbarment,  sec.  31,  p.  199 
power  to  disbar  inherent  in  courts,  sec.  31,  p.  200 

but  proceeding  for,  may  be  controlled  by  statute,  sec.  31,  p.  200 
may  be  proceeded  against  summarily  for  indictable  offense  before 

conviction,  sec.  31,  p.  2U0 
appearance  may  be  by,  sec.  34,  p.  225 

failure  to  indorse  name  of  on  summons,  effect  of,  sec.  36,  pp.  250,  251 
not  a  de  facto  judge,  when  acting  as  such,  sec.  60,  p.  382 
otherwise  when  irregularly  appointed  under  proper  authority,  sec. 
60,  p.  382 


1 


INDEX.  759 

Attorney —  Continued. 

when  may  pe  appointed  as  special  judge,  sec.  61,  p.  387 

statutes  authorizing  held  unconstitutional,  sec.  61,  p.  387 
when  may  be  restored  as  such,  by  mandamus,  sec.  80,  p.  624 

Audita  Querela.     (See  Writs  of  Error.) 

means  of  relieving  one  from  a  judgment,  sec.  84,  pp.  670,  671 
obsolete  in  most  of  the  states,  sec.  84,  p.  671 

B 

Bailiff- 
power  of  officer  to  appoint,  sec.  37,  p.  252 
special,  powers  of,  in  service  of  process,  sec.  37,  p.  253 

Bills  and  Writs  of  Review- 
bill  of  review  in  equity  similar  to  writ  of  error,  sec.  87,  p.  722 
may  be  brought  for  error  appearing  on  face  of  record,  sec.  87,  p.  722 
when  question  must  be  determined  by  record,  sec.  87,  p.  723 
bills  in  nature  of  review,  objects  of,  sec.  87,  p.  723 
bills  for  impeachment  of  decrees  for  fraud,  sec.  87,  p.  723 
proceedings  have  fallen  into  disuse  in  most  of  the  states,  sec.  87,  p. 

723 
included  in  writs  of  error  and  certiorari,  sec.  87,  p.  723 
writs  of  review  provided  for  by  statutes,  sec.  87,  pp.  723,  724 
rules  respecting  certiorari  apply  to  writs  of  review,  sec.  87,  p.  724 
statutory  remedies  in  the  nature  of,  sec.  87,  pp  723-72.5 
when  lies  for  newly-discovered  evidence  or  new  matter,  sec.  87,  p. 

725 
statutory,  not  applicable  to  decrees  of  divorce,  sec.  87,  p.  725 
based  on  errors  of  law,  what  complaint  under  statutory  proceeding 

must  contain,  sec.  87,  p.  725 
dififers  from  action  to  annul  judgment,  how,  sec.  87,  p.  725 
remedy  by,  does  not  supersede  power  to  annul  or  set  aside  judg- 
ment, sec.  87,  p.  726 
how  and  where  action  to  review  brought  and  prosecuted,  sec.  87,  p. 

726 
bars  appeal,  sec.  87,  p.  726 

what  judgments  are  subject  to  review  by,  under  codes,  sec.  87,  p.  727 
court  of  concurrent  jurisdiction  can  not  entertain,  sec.  87,  p.  727 
decree  under,  can  not  be  reviewed,  sec.  87,  p.  727 

Bill  of  Exceptions— 

when  and  where  judge  may  settle,  sec.  57,  p.  372 

Bills  of  Review.     (See  Bills  and  Writs  of  Review.) 

Bonds.     (See  Municipal  Bonds;  Injunctions.) 

to  stay  proceedings  on  appeal,  efifect  of,  sec.  24,  p.  150 
in  attachment,  sec.  74,  pp.  534,  535 
in  garnishment,  sec.  75,  p.  549 

municipal,  on  what  grounds  court  of  equity  will  enjoin  issuance  or 
sale  of,  sec.  79,  pp.  606-608 

C 

Cancellation— 

of  instruments  within  jurisdiction  of  courts  of  equity,  sec.  9,  p.  24 

Certiorari— 

when  question  of  jurisdiction  may  be  raised  by,  sec.  22,  p.  112 
defined,  sec.  86,  pp.  698,  699 


760  INDEX. 

Certiorari — Continued. 

objects  of,  sec.  86,  pp.  698-701,  712-717 

whether  right  of  appeal  or  writ  of  error  will  bar  right  to,  sec.  86,  pp. 

698,  699 
to  what  extent  power  to  issue  inherent  and  beyond  legislative  inter- 
ference, sec.  86,  p.  699 
to  what  courts  may  issue,  sec.  86,  pp.  699-702 
where  remedy  can  not  be  had  by  writ  of  error,  sec.  86,  p.  700 
definition  given  does  not  cover  writ  as  at  present  used,  sec.  86,  p.  702 
at  common  law  was  extraordinary  legal  remedy,  sec.  86,  p.  703 
but  has  become  to  a  great  extent  ordinary  writ  for  correction  of 

errors,  sec.  86,  p.  703 
at  what  time  may  issue,  sec.  86,  pp.  703,  704 
•   what  relief  may  be  granted  under,  sec.  86,  p.  704 
is  remedial  and  not  preventive,  sec.  86,  p.  704 
in  some  states  can  only  issue  to  test  jurisdiction,  sec.  86,  p.  704 
and  not  to  correct  errors,  sec.  86,  p.  704 

but  extends  to  jurisdiction  of  the  person,  sec.  86,  pp.  704,  705 
held  may  inquire  whether  lower  court  proceeded  regularly  and  ac- 
cording to  law,  sec.  86,  p.  705 
meaning  of  "  regularly  and  according  to  law,"  sec.  86,  pp.  705,  706 
what  is  meant  by  acting  "illegally"  under  statutes  authorizing  writ 

on  that  ground,  sec.  86,  p.  707 
strict  limitation  of  the  use  of  the  writ  in  some  cases,  sec.  86,  pp.  708, 

709 
trial  without  a  hearing  is  an  excess  of  jurisdiction,  sec.  86,  pp.  708, 

709 
distinction  made  between  cases  where  is  another  remedy  and  those 

where  there  is  none  as  to  the  extent  of  the  remedy,  sec.  86,  p. 

709 
in  many  cases  extended  to  review  of  questions  of  law,  sec.  86,  p.  710 
and  consideration  of  the  evidence,  sec.  86,  p.  710 
distinction  made  in  this  respect  between  courts  and  quasi  judicial 

bodies,  sec.  86,  p.  710 
and  between  courts  acting  summarily  and  when  not,  sec.  86,  p.  710 
right  of  appeal  not  absolute  bar  to,  sec.  86,  p.  711 
allowed  to  serve  purpose  of  writ  of  error  where  latter  can  not  be 

resorted  to,  sec.  86,  p.  711 
or  where  right  of  appeal  lost  without  fault,  sec.  86,  p.  711,  712 
in  some  states  has  choice  of  resorting  to  writ  or  to  appeal,  or  writ 

of  error,  sec.  86,  p.  712 
in  others  held  can  not  be  used  as  substitute  for  an  appeal,  sec.  86,  p. 

712 
from  what  courts  may  issue,  sec.  86,  p.  712 
confusion  as  to  objects  of  writ  by  reason  of  statutes,  sec.  86,  pp.  712, 

713,  714 
liberal  use  of  in  some  states,  sec.  86,  pp.  714,  715 
conflict  in  the  decisions  as  to  the  scope  of  the  remedy,  sec.  86,  pp. 

712-716 
whether  may  be  used  to  compel  lower  court  to  proceed  with  action, 

sec.  86,  p.  716 
writ  of  same  name  allowed  to  bring  up  part  of  record,  sec.  86,  p.  716 
used  in  connection  with  habeas  corpus,  sec.  >>6,  p.  717 
bills  of  certiorari  in  chancery,  objects  of,  sec.  86,  p.  717 
writ  brings  up  entire  record  for  review,  sec.  86,  p.  717 
question  must  be  determined  by  record,  sec.  86,  p.  717 
when  the  evidence  may  be  looked  to,  sec.  86,  pp.  718,  719 
general  scope  of  the  remedy,  sec.  86,  pp.  718-721 


[NDEX.  761 

Certiorari — Continued. 

can  not  be  used  to  test  legal  existence  of  corporation,  sec.  86,  p.  721 
issuance  of  in  what  sense  within  the  discretion  of  the  court,  sec.  86, 

pp.  721,  722 
right  to  may  be  lost  by  laches,  sec.  86,  p.  722 
operates  as  a  supersedeas,  sec.  86,  p.  722 
can  not  be  issued  by  judge  at  chambers,  sec.  86,  p.  722 
what  judgment  may  be  rendered  under,  sec.  86,  p.  722 

Chambers.     (See  Judges.) 

what  powers  judges  have  at,  sec.  58,  pp.  372-376 

Chancery.    (See  Common  Law  Jurisdiction,  Courts  of  Chancery,  Equity,' 
Equity  Jurisdiction,  Jurisdiction.) 

Change  of  Venue.    (See  Venue.)  « 

deprives  court  of  jurisdiction,  sec.  24,  p.  151 
power  of  court  over  records  after,  sec.  24,  p.  152 
by  agreement  of  parties,  effect  of,  sec.  24,  p.  152 
commencement  of  action  in  wroyvj  place  and  its  effects^  sec.  45 

at  common  law  in  local  actions  venue  must  be  properly  laid,  sec. 
45,  p.  326 

rule  modified  by  statutes,  sec.  45,  p.  326 

action  in  wrong  countv,  party  must  demand  change  of  venue,  sec. 
45,  p.  326 

appearance  without   objection  when   waives  bringing   in    wrong 
county,  sec.  45,  p.  327 

when  application  for  change  must  be  made,  sec.  45,  p.  327 

failing  to  appear,  party  can  not  raise  question,  sec.  45,  p.  327 

where  no  statute  authorizes  change,  what  remedy  may  be  had,  sec. 
45,  p.  327 

distinction  between  transitory  and  local  actions,  sec.  45,  p.  327 

in  former,  jurisdiction  given  by  consent;  in  latter,  not,  sec.  45,  p. 
327 

in   latter,  court  has  no  jurisdiction  if  action  brought  in  wrong 
county,  sec.  45,  p.  328 

but  legislature  may  change  this  rule,  sec.  45,  p.  328 

statute  requiring  application  for  change  in  local  actions,  rule  of 
waiver  applies  as  in  transitory  actions,  sec.  45,  p.  328 

held  statute  in  general  terms  applies  to  local  actions,  sec.  45,  p.  328 
cases  to  contrary,  sec.  45,  p.  328 

diflFerent  rule  in  other  states,  sec.  45,  p.  330 

distinction  applied  to  actions  purely  in  rem.,  sec.  45,  p.  330 

independent  of  statute,  jurisdiction  may  be  attacked  without  ap- 
plication for  change,  sec.  45,  p.  331 

actions  made  local  by  constitution,  effect  of,  sec.  45,  p.  331 

statutes  changing  rule  modify  statutes  fixing  place  of  trial,  sec.  45, 
p.  331 

efiFect  of  application  for  change,  sec.  45,  p.  332 

deprives  court  of  jurisdiction,  sec.  45,  p.  332 

right  to  have  action  brought  in  certain  county,  personal  privilege, 
when,  sec.  45,  p.  332 

and  may  be  waived  when,  sec.  45,  p.  332 

action  against  several,  any  one  may  have  change,  sec.  45,  p.  332 

right  to  change,  when  absolute,  sec.  45,  p.  332 

effect  of  constitution  requiring  actions  to  be  commenced  in  certain 
county,  sec.  45,  p.  333 
may  be  tried  in  other  county,  sec.  45,  p.  333 

distinction  between  jurisdiction  of  general  subject-matter  and  par- 
ticular cause  of  action,  sec.  45,  p.  333 


762  INDEX. 

Change  of  Venue — Conntinued. 

action  in  wrong  county  can  not  be  dismissed,  when,  sec.  45,  p.  333 
action  on  appeal  when  change  may  be  had,  sec.  45,  p.  334 
rule  as  to  non-residence,  sec.  45,  p.  334 
grounds  of  change  of  venue,  sec.  46 
are  purely  statutory,  sec.  46,  p.  334 
different  in  different  states,  sec.  46,  p.  334 
enumerated,  sec.  46,  pp.  334,  335 

effect  on  jurisdiction  of  different  grounds,  sec.  46,  p.  335 
when  right  to  change,  is  absolute,  effect  of  application  for,  sec.  46, 

p.  335 
failure  to  make  application,  effect  of,  sec.  46,  p.  335 
disqualification  of  judge,  effect  of,  sec.  46,  pp.  335,  336,  342 

no  application  for  change  necessary,  sec.  46,  p.  335  fji 

duty  to  decline  to  act,  sec.  46,  p.  335  T 

application  made,  subsequent  acts  void,  sec.  46,  p.  336 
bias  or  prejudice  of  inhabitants,  jurisdiction  not  involved,  sec.  46, 
p.  336 
right  of  change  for,  whether  absolute  or  not,  sec.  46,  p.  336 
counter  evidence  may  be  given,  sec.  46,  p.  336 
different  rule  in  some  states,  sec.  46,  p.  337 
whether  application,  or  order  for  change,  ousts  jurisdiction,  sec.  46, 

p.  337 
judge  attorney  for  party,  effect  of,  sec.  46,  p.  337  u- 

what  will  constitute  him  such  attorney,  sec.  46,  p.  337  If 

judge  witness  in  cause,  effect  of,  sec.  46,  p.  338 
effect  of  joining  cause  removable  with  one  not  removable,  sec.  46, 
p.  338 
application  for  change  and  its  ejects,  sec,  47 

must  be  made  within  time  fixed  by  statute,  sec.  47,  p.  338 

subject  to  right  to  relief  for  excusable  neglect,  mistake,  etc.,  sec. 
47,  p.  338 
time  for,  fixed  by  rules  of  court,  effect  of,  sec.  47,  p.  338 
cause  not  discovered  until  after  time,  effect  of,  sec.  47,  p.  339 
number  of  changes  that  may  be  had,  sec.  47,  p.  339  ^ 

nature  and  form  of,  governed  by  statute,  sec.  47,  p.  339  tI 

what  is  usually  required,  sec.  47,  pp.  339,  340 

statute  must  be  complied  with,  sec.  47,  p.  340 
more  than  statute  requires  can  not  be  required  by  rule  of  court, 

sec.  47,  p.  340 
no  vested  right  to,  statute  may  be  changed,  sec.  47,  p.  340 
infant  may  make  aflSdavit  for,  sec.  47,  p.  340 
affidavit  may  be  amended,  sec.  47,  p.  340 
what  affidavit  must  contain,  sec.  47,  pp.  340,  341 
when  judge  may  take  into  account  his  own  knowledge,  sec.  47,  pp. 

341,  342 
on  ground  of  convenience  of  witnesses,  when  made,  sec.  47,  p.  342 
fraudulently  joining   resident  to   give  jurisdiction   over  non-resi- 
dent, effect  of,  sec.  47,  p.  342 
other  necessary  proceedings  to  procure  transfer,  sec.  48 
usually  affidavit  alone  necessary,  sec.  48,  p.  343 
but  in  some  states  written  demand  required,  sec.  48,  p.  343 

payment  of  costs  and  transmission  of  papers,  sec.  48,  p.  343 
pending  performance  of  conditions  after  application,  where  juris- 
diction rests,  sec.  48,  p.  343 
in  what  cases  conditions  not  imposed,  sec.  48,  p.  343 
presumption  that  conditions  not  performed,  when,  sec.  48,   p.  344 


INDEX.  763 

Change  of  Venue — Continued, 

relief  from  failure  to  perform  in  time,  sec.  48,  p.  344 

court  can  not  impose  conditions  not  required  by  statute,  sec.  48. 
p.  344 
waiver  as  to  venue,  sec.  49 

right  to  trial  in  particular  place  may  be  waived,  sec.  49,  p.  344 
distinction  between  transitory  and  local  actions,  sec.  49,  p.  344 

failure  to  apply  for  change  in  time  waives,  when,  sec.  49,  pp.  344, 
345 

when  required  to  be  made,  sec.  49,  p.  345 

when  may  be  renewed,  sec.  49,  p.  346 

when  objection  may  be  made  at  the  trial,  sec.  49,  p.  346 

failure  to  comply  with  subsequent  conditions,  effect  of,  sec.  49,  p. 
346 

defects  in  application,  how  waived,  sec.  49,  p.  346 

consent  to  change  waives  application,  sec.  49,  p.  346 

appearance  in  court  to  which  action  removed,  effect  of,  sec.  49,  p. 
347 
counter  motion  to  retain  case,  sec.  50 

action  brought  in  wrong  county,  convenience  of  witnesses  no  de- 
fense to  application  fdr  change,  sec.  50,  p.  347 
counter  motion  to  retain  not  proper,  sec.  50,  p.  347 

when  counter  motion  to  retain  may  be  considered,  sec.  50,  op.  347, 
348 

when  counter  motion  not  necessary  to  retain  case,  sec.  50,  p.  348 

convenience  of  witnesses,  when  may  be  considered,  sec.  50,  p.  348 
order  for  change  and  its  effects,  sec.  51 

whether  application  or  order  divests  court  of  jurisdiction,  sec.  51, 
pp.  348,  349 

depends  upon  ground  of  application  and  whether  right  is  absolute, 
sec.  51,  p.  349 

if  absolute,  order  made  as  of  course,  sec.  51,  p.  349 

and  application  terminates  or  suspends  jurisdiction,  sec.  51,  p. 
349 

only  suspends  jurisdiction,  when,  sec.  51,  p.  349 

revived  bv  failure  to  comply  with  subsequent  conditions,  sec.  51, 
p.  349 

what  vests  jurisdiction  in  court  to  which  transfer  ordered,  .sec.  51, 
p.  349 

power  of  courts  from  and  to  which  change  ordered,  pending  per- 
formance of  conditions,  sec.  51,  p.  349 

order,  at  what  time  vests  court  to  which  removed  with  jurisdic- 
tion, sec.  51,  pp.  349,  350 

failure  to  perform  conditions,  court  making  ordermay  set  it  aside, 
sec.  51,  p.  350 

when  appears  from  order  that  no  legal  cause  for  change,  other 
court  should  refuse  to  act,  sec.  51,  p.  350 

otherwise  where  facts  authorizing  do  not  exist  but  does  not  appear 
from  record,  sec.  51,  p.  350 

question  as  to  cause  for  removal  must  be  contested  when  applica- 
tion made,  when,  sec.  51,  p.  350 

when  order  does  not  transfer  jurisdiction,  sec.  51,  pp.  350,  351 

presumption  that  court  acted  rightly  in  granting  change,  sec.  51, 
p.  351 

but  if  change  not  authorized  under  any  circumstances,  order  grant- 
ing a  nullity,  sec.  51,  p.  351 

proceedings  defective,  order  erroneous  only,  sec.  51,  p.  351 

when  ordeK  may  be  collaterally  attacked,  sec.  51,  p.  351 


764  INDEX. 

Change  of  Venue — Continued. 

when  question  on  appeal  one  of  law,  sec.  51,  pp.  351,  352 
when  order  granting  conclusive,  sec.  51,  p.  352 
conditional  order,  when  may  be  made,  sec.  51,  p.  352 
when  court  may  set  aside  order,  sec.  51,  p.  352 
remanding  cause,  sec.  52 

when  order  granting  void  no  order  remandiiiij  necessary,  sec.  52, 
p.  352 
and  court  to  which  transferred  has  no  jurisdiction  to  remand, 

sec.  52,  p.  352 
court  may  be  prevented  from  proceeding,  sec.  52,  p.  352 
and  court  making  order  compelled  to  proceed,  sec.  52,  pp.  352, 

353 
held  court  may  order  re-transfer,  sec.  52,  p.  353 
irregular  transfer,  how  taken  advantage  of,  sec.  52,  p.  354 

Citation.     (See  Summons.) 
defined,  sec.  35,  p.  238 

does  not  differ  materially  from  summons,  sec.  35,  p.  238 
objects  of,  sec.  35,  p.  238 

Citizenship.     (See  Naturalization.) 

question  of  jurisdiction  growing  out  of,  how  raised,  sec.  22,  p.  107 
of  corporations  not  changed  by  doing  business  in  another  state,  sec. 
43,  pp.  323,  324 
Collateral  Attack.     (See  Jurisdiction,  Presumptions.) 

that  court  had  not  jurisdiction  of  subject-matter  may  be  raised  col- 
laterally, sec.  22,  pp.  103,  112 
diflference  between  and  direct  attack,  sec.  22,  pp.  118-120 
jurisdiction  of  court  of  general  powers  can  not  be  question  on,  sec. 

22,  p.  120 
foreign  judgment,  when  subject  to,  sec.  22,  p.  121 
domestic  judgment,  when  subject  to  sec.  22,  p.  121 ;  sec.  26 
presumption  in  favor  of  jurisdiction  in  cases  of,  sees.  25,  26 
ot  grant  of  letters  of  administration  when  can  be  made  on,  sec.  67, 

p.  456 
whether  proceedings  for  sale  of  real  estate  subject  to,  sec.  76,  p.  560 

Color  of  Title— 

whether  necessary  to  constitute  a  de  facto  officer,  sec.  60,  p.  379 

Committee- 
appearance  may  be  made  by,  sec.  34,  p.  225 

Common    Law.      (See    Chancery,    Common-law   Jurisdiction,   Courts, 
Equity,   Equity  Jurisdiction,  Jurisdiction.) 

courts  of  defined,  sec.  1,  p.  1 

common-law  courts  in  England,  sec.  3,  p.  3 

superseded  by  supreme  court  oir  judicature,  sec.  3,  p.  3 

common-law  courts  in  United  States,  sec.  4,  p.  5 

constructive  service  of  process  in  derogation  of,  sec.  13,  p.  43 

statutes  in    derogation  of,  to  be  strictly  construed — rule  abrogated, 
sec.  13,  p.  43 

constructive   service  unknown  at,  sec.  13,  pp.  44 

distinction  between  actions  in  and  suits  in  equity  abolished  by  the 
codes,  sec.  9  p.  26 

actions  at,  how  question  of  jurisdiction  raised,  sec.  22,  p.  107 
Common-law  Jurisdiction.     (See  Common  Law,  Equity,  Equity  Juris- 
diction.) 

meaning  of  term,  sec.  9,  p.  28 


I 


I 


INDEX.  765 

Common-law  Jurisdiction — Continued. 

consolidated  with  equity  jurisdiction  in  "civil  action,"  of  the  code, 
sec.  9,  pp.  23,  26 

in  federal  and  some  of  state  courts  kept  separate,  sec.  9,  p.  23 

diflFers  from  equity  jurisdiction  mainly  in  remedies  administered,  sec. 
9,  p.  23 

how  measured  and  limited,  sec.  9,  p.  24 

concurrent  with  courts  of  chancery,  sec.  9,  p.  27 

sometimes  conferred  by  constitution  or  statute,  sec.  10,  p.  28 

intermingled  by  statutes  with  equity,  constitutional  and  statutory, 
sec.  65,  p.  420 

has  been  modified  by  statute,  sec.  65,  p.  420 

courts  of  general  jurisdiction  usually  vested  with,  sec.  65,  p.  421 

grant  of,  what  includes,  sec.  65,  p.  421 

distinction  between  and  equity  not  so  important  as  formerly,  sec.  65, 
p.  422 

common  law  adopted  by  some  of  the  states,  sec.  65,  p.  423 

statutes  prevail  over,  sec.  65,  p.  423 

vested  by  constitution  can  not  be  taken  away  by  statute,  sec.  65,  p. 
423 

no  constitutional  provision  against  it,  may  be  changed  at  will,  sec. 
65,  p.  423 

presumed  that  it  was  the  intention  that  the  common  law  should  pre- 
vail, sec.  65,  p.  424 

federal  courts  have  none  except  as  conferred  by  statute,  sec.  65,  p. 
424 

includes  criminal  cases,  sec.  69,  p.  479 
Complaint.     (See  Jurisdiction,  Pleadings.) 

amendment  of  after  service  by  publication,  effect  of  on  judgment 
by  default,  sec.  8,  p.  22 

controls  in  determining  jurisdiction  as  to  amount,  sec.  16,  p.  59 

amount  alleged  in  bad  faith  disregarded,  sec.  16,  p.  59 

when  question  of  jurisdiction  may  be  raised  by  demurrer  to,  sec.  22, 
pp.  106-110 

when  aids  affidavit  for  publication,  sec.  38,  p.  274 

insufficiency  of  no  ground  for  setting  aside  publication  of  notice, 
sec.  38,  p.  279 

filing,  how  time  of  affects  validity  of  publication,  sec.  38,  p.  278 

amendment  of  by  making  new  parties,  when  service  of  process  neces- 
sary, sec.  42,  p.  305 
Concurrent  Jurisdiction.     (See  Courts,  Exclusive  Jurisdiction,  Juris- 
diction.) 

defined,  sec.  9,  p.  28,  note  1 

constitution   giving  to  one  not  exclusive,  legislature  may  give  con- 
current to  another  court,  sec.  17,  p.  68;  sec.  24,  p.  146 

two  courts  having,  first  taking  has  exclusive,  sec.  17,  p.  68 

court  of,  no  power  to  interfere  with  judgments  of   other  court  of 
same  jurisdiction,  sec.  17,  p.  69 

will  not  restrain  proceedings  in  another  court,  sec.  17,  p.  69 

rule  extends  to  process  mesne  and  final,  sec.  17,  p.  69 

but  does  not  protect  officer  who  goes  bevond  command  of  writ,  sec. 
17.  p.  69 

one  court  may  aid  another  of  concurrent  jurisdiction,  sec.  17,  p.  71 

occurs  where  party  entitled  to  both  legal  and  equitable  relief,  sec.  17, 
pp.  71,  72 

when  federal  and  state  courts  have,  sec.  17,  p.  73 


766  INDEX. 

Constable- 
power  of  to  appoint  deputy,  sec.  37,  p.  254 
power  of  deputy  to  serve  process,  sec.  37,  p.  254 

Constitutions— 

of  United  States,  provisions  of,  with  reference  to  due  process  of  lavF, 

sec.  33,  p.  206 
of  states,  contain  similar  provisions,  sec.  33,  p.  206 
of  United  States,  api^lies  to  states  and  courts,  sec   33,  p.  206 
not  confined  to  judicial  proceedings,  sec.  33,  p.  206 
apply  to  laws  enacted  by  congress,  sec.  33,  p.  207 
amendment  article  5  limits  powers  of  congress  and  federal  judiciary, 

not  states,  sec.  33,  p.  207 
what  requires  to  constitute  due  process  of  law,  sec.  33,  pp.  211,  212 
jurisdiction  given  bv,  can  not  be  taken  away  by  legislature,  sec.  54, 

p.  355 

Constitutional  Jurisdiction- 
jurisdiction  conferred  by  constitution  can  not  be  taken  away  by  leg- 
islature, sec.  17,  p.  68;   sec.  24,  p.  146;  sec.  54,  p.  355 
exclusive,  can  not  be  conferred  by  legislature  on  another  court,  sec. 
17,  p.  68 
concurrent,  may  be  conferred   on  other  courts  where  not  made 

exclusive,  sec.  17,  p.  68;   sec.  24,  p.  146 
may  be  enlarged  but  not  diminished  by  legislature,  sec.  17,  p.  68 
of  judges  may  be,  sec.  54,  p.  355 
jurisdiction  of  superior  courts  generally  fixed  and  defined  by  con- 
stitution, sec.  66,  p.  426  1^. 
generally  done  by  conferring  in  all  cases  at  law  and  in  equity,  sec.      *^ 
66,  p.  426                                                                                                 % 
but  sometimes  specifically  defined  and  limited,  sec.  66,  p.  426 
the  same  as  if  conferred  by  statute,  except  can  not  be  taken  away 
by  statute,  sec.  66,  p.  427 
nor  modified,  limited  or  extended,  sec.  66,  p.  427 
power  of  legislature  where  jurisdiction  given  by  constitution,  sec. 

66,  p.  427 
effect  of  grant  of  jurisdiction  in  "cases  at  law"  or  "common-law 
jurisdiction,"  sec.  66,  p.  427 
what  includes,  sec.  66,  p.  427 
special  proceedings  and  cases,  what  are,  sec.  66,  pp.  428,  429 
distinction  between  and  action  or  civil  action  not  warranted,  sec.  66, 

pp.  428,  429 
jurisdiction  given  by  constitution,  but  procedure  not  provided,  court 

may  provide,  sec.  66,  p.  431 
power  to  issue  writs  given  by  constitution,  objects  of   can  not  be 

changed  by  statute,  sec.  66,  p.  431 
jurisdiction  conferred  by  constitution  not  exclusive  unless  expressly 
made  so,  sec.  66,  p.  431 
and  may  be  conferred  concurrently  on  other  courts  by  statute,  sec. 
66,  p.  431 

Constitutional  Limitations- 
division  of  powers  of  departments  of  state,  sec.  29,  p.  183 
when  acts  of  department  void,  sec.  29,  p.  183 

judicial  department,  what  acts  of  other  officers  may  enforce,  sec.  29, 
p.  183 
ministerial  acts,  sec.  29,  p.  183 

not  acts  involving  judgment  or  discretion,  sec.  29,  p.  183 
or  executive  or  political  acts,  sec.  29,  p.  183 


^ 


INDEX.  767 

Constitutional  Limitations — Continued. 

what  are  ministerial,  executive,  legislative,  and  judicial  acts,  sec.  29, 

pp.  184-187,  191 
how  far  judicial  may  control  legislative  department,  sec.  29,  pp.  188, 

191 
how  far  departments  independent,  sec.  29,  pp.  183,  191,  192 
courts,  how  far  controlled  by  legislative  construction  of  laws,  sec.  29 

p.  193 
appointment  of  officers  executive  act,  sec.  29,  p.  193 

but  other  departments  may  appoint  their  own  officers,  when,  sec. 
29,  pp.  193,  194 
ministerial  or  legislative  duties  can  not  be  imposed  upon  courts,  sec. 
29,  p.  194 
nor  judicial  duties  on  any  but  courts  and  judicial  officers,  sec.  29, 
p.  194 
whether  law  constitutional,  courts  must  determine,  sec.  29,  p.  195 

Constructive  Authority.     (See  Inherent  Powers.) 
Constructive  Notice.     (See  Constructive  Service  of  Process.) 

definition  of,  sec.  38,  p.  266 

when  authorized  and  how  given,  sec.  38,  p.  266 

Constructive  Service  of  Process- 
distinguished  from  personal  service,  sec.  13,  p.  41 
will  not  authorize  a  personal  judgment,  sec.  13,  p.  42 
when  is  effective,  sec.  13,  p.  42 

statute  authorizing,  must  be  strictly  complied  with,  sec.  13,  p.  43 
unknown  at  common  law,  sec.  13,  p.  44 

personal  service  out  of  the  state  is  constructive,  sec.  13,  p.  42 
complaint  can  not  be  amended  after,  sec.  13,  p.  42 
presumptions  of  jurisdiction  in  cases  of,  sec.  25.    (See  Presumptions.) 
when  authorized,  sec.  33,  pp.  213-217 
who  may  determine  when  such  necessity  exists  as  should  authorize, 

sec.  33,  pp.  213-217 
meaning  of,  sec.  38,  p.  266 

includes  personal  service  out  of  state,  sec.  38,  p.  266 
is  exceptional  mode  of  service,  sec.  38,  p.  266 
statutes  authorizing,  must  be  complied  with,  sec.  38,  p.  266 
division  of  the  subject,  sec.  38,  p.  266 
a.  in  lohat  cases  allowed,  sec.  38,  p.  267 

under  control  of  the  states,  sec.  38,  p.  267 

general  rule,  personal  action  can  not  be  maintained  on,  sec.  38, 
p.  267 

either  against  resident  or  non-resident,  sec.  38,  p.  267 
personal  judgment,  what  is,  sec.  38,  p.  268 
allowed  in  actions  m  rem.  and  attachment^  sec.  38,  p.  269 

but  relief  confined  to  property,  sec.  38,  p.  269 
seizure  of  property  generally  necessary,  sec.  38,  p.  270 

and  notice,  sec.  38,  p.  270 
allowed  in  cases  to  enforce  specific  liens  on  property  within  juris- 
diction, sec.  38,  p.  270 
as  in  case  of  mortgage  on  real  or  per.sonal  property,  sec.  38,  p. 

270 
proceedings  affecting  title  to  real  estate,  sec.  38,  p.  270 
to  set  aside  fraudulent  conveyances,  sec.  38,  p.  270 
actions  to  quiet  title,  sec.  38,  p.  270 
to  abate  nuisances,  sec.  38,  p.  270 
to  establish  trusts  in  real  estate,  sec.  38,  p.  270 


768 


ISDEX. 


Constructive  Service  of  TTocess—Omtinue'L 

in   such  cases,   iurisdiction  depends   upon  presence  of  property, 
sec.  38,  p.  270 
and  personal  judgment  can  not  be  rendered,  sec.  38,  p.  270 
allowed  in  cases  affecting  status  of  parties,  as  in  divorce,  sec.  38, 
p.  270 
but  can  be  no  personal  judgment  on,  as  for  alimony,  sec.  38,  p. 
270 
independent  of  statute  courts  can  not  authorize,  sec.  38,  p.  271 
courts  of  equity  when  may  authorize  service  on  other  person  for 
non-resident,  sec.  38,  p.  271 
b.  the  affidavit,  sec.  38,  p.  271 

making  of  is  jurisdictional,  sec.  38,  p.  271 

what  must  be  shown  by,  sec.  38,  pp.  271,  272 

may  be  sufficient  to  give  jurisdiction  but  defective  and  subject  to 

direct  attack,  sec.  38,  p.  272 
what  must  contain  governed  by  statute,  sec.  38,  pp.  272,  273 
•  but  every  step  required  may  be  taken  and  yet  service  be  void, 
when,  sec.  38,  pp.  272,  273 
how  fact  of  non-residence  may  be  established,  sec.  38,  p.  273 
facts  required  to  be  stated  in  can  not  be  supplied  by  other  evi- 
dence, sec.  38,  p.  273 
held  not  to  be  part  of  judgment  roll,  sec.  38,  pp.  273,  274 
and  that  was  made  will  be  presumed,  sec.  38,  p.  274 
must  appear  from  that  case  is  one  for  constructive  notice,  when, 

sec.  38,  p.  274 
vrhen  complaint  may  be  looked  to  for  cause  of  action,  sec.  38,  pp. 

274,  275 
general  statement  of  cause  of  action  sufficient,  sec.  38,  p.  275 
not  always  sufficient  to  follow  language  of  statute,  sec.  38,  p.  275 
diligence  to  find  defendant  for  personal  service,  what  showing  of 
necessary,  sec.  38,  pp.  275,  276,  277 
facts  as  to  what  was  done  must  be  stated,  sec.  38,  p.  275 
but  any  facts  tending  to  show  gives  court  jurisdiction  to  deter- 
mine question,  sec.  38,  p.  275 
what  constitutes  due  diligence  can  not  be  definitely  stated,  sec.  38, 

pp.  275,  276 
allegation  of  property  within  jurisdiction,  how  must  be  made,  sec. 

38,  p.  276 
what  may  be  stated  on  information  and  belief,  sec.  38.  p.  276 
that  defendant  is  out  of  state  must  be  positive  and  direct,  sec. 
38,  p.  276 
absence  from  state  what  sufficient,  sec.  38,  pp.  276,  277 
strictness  required  in  stating  nature  of  action,  sec.  38,  p.  277 
name  of  party  to  be  published  against  necessary,  sec.  38,  p.  277 
except  where  defendant  may  be  sued  under  fictitious  name,  sec. 

38,  p.  277 
then  must  be  shown  that  true  name  is  unknown,  sec.  38,  p.  277 
false  statement  of  cause  of  action  in,  effect  of,  sec.  38,  p.  277 

does  not  affect  jurisdiction  of  court,  sec.  38,  p.  278 
of  non-residence  must  relate  to  time  of  order  for  publication,  sec. 
38,  p.  278 
how  near  the  time  must  be  made,  sec.  38,  p.  278 
neeil  not  be  made  at  time  complaint  is  filed,  sec.  38,  p.  278 
in  some  states  complaint  must  be  filed  after  proof  of  publica- 
tion, sec.  38,  p.  278 
and  if  filed  before  judgment  void,  sec.  38,  p.  278 
when  affidavit  may  be  amended,  sec.  38,  p.  279 


INDEX.  769 

Constructive  Service  of  "Process— Continued. 

difficulty  of  making  personal  service  no  ground  for  publication 

sec.  38,  p.  279 
insufficiency  of  complaint  not  ground  for  attacking  notice,  sec.  38, 
p.  279 

c.  officers  return  as  basis  for  publication,  sec.  38,  p.  279 

facts  necessary  for,  when  may  be  shown  by,  sec.  38,  p.  279 
what  must  be  shown  by,  sec.  38,  p.  279 

d.  order  of  publication,  sec.  38,  p.  280 

must  require  all  acts  to  be  done  that  statute  requires,  sec.  38,  p. 

280 
is  the  authority  for  making  the  service,  sec.  38,  p.  280 
and  proper  service  without  necessary  order  therefor  is  void,  sec. 
38,  p.  280 
what  order  must  contain,  sec.  38,  pp.  280,  281 

e.  the  publication,  sec.  38,  p.  281 

what  must  be,  governed  by  statute,  sec.  38,  p.  281 

in  some  states  summons  published,  sec.  38,  p.  281 

in  others  notice  containing  its  substance,  sec.  38,  p.  281 

irregularities  do  not  render  void.  sec.  38,  p.  281 

but  distinction  in  this  respect  between  personal  and  constructive 
service,  sec.  38,  pp.  281,  282 
publication  for  less  than  required  time,  eflfect  of,  sec.  38,  pp.  282, 

283 
rule  in  cases  of  petition  by  guardian  for  sale  of  ward's  property, 

sec.  38,  p.  283 
petition  said  to  give  jurisdiction  in  such  cases,  sec.  3S,  p.  283 
relief  demanded,  of  which  notice  is  given,  limits  jurisdiction  to 

granting  such  relief,  when,  sec.  38,  p.  284 
death  of  defendant  pending   publication,  new  notice  necessary, 

sec.  38,  p.  284 
where  publication  measured  by  months,  calendar  months  meant, 

sec.  38,  p.  284 
what  is  sufficient  length  of  time  for  publication,  sec.  38,  p.  284 

f.  proof  of  publication,  sec.  38,  p.  284 

validity  of  judgment  does  not  depend  upon,  sec.  38,  p.  284 

but  upon  fact  of  publication,  sec.  38,  p.  284 

therefore  may  be  supplied  after  judgment,  sec.  38,  p.  285 

and  may  be  amended,  sec.  38,  p.  285 
failure  to  make  is  irregularity  merely,  sec.  38,  p.  285 
but  judgment  void  on  face,  right  to  supply  or  amend  subject  to 

intervening  rights,  sec.  38,  p.  285 
facts  of  publication  may  be  established,  how.  sec.  38,  p.  285 
by  whom  affidavit  may  be  made,  sec.  38,  p.  285 
warning  order  takes  place  of  summons,  and  proof  the  place  of 

officer's  return,  sec.  38,  p.  286 
facts  appearing  in,  lay  way  of  recital,  effect  of,  sec.  38,  p.  286 
after  many  years,  slight  proof  sufficient,  sec.  38,  p.  286 

g.  personal  service  out  of  state,  sec.  38,  p.  286 
is  constructive  service,  sec.  38,  p.  286 

and  allowed  on  like  showing  as  for  publication,  sec.  38,  p.  286 
and  usually  length  of  service  the  same,  sec.  38,  p.  286 

Contempts.     (See  Inherent  Powers.) 

courts  have  inherent  power  to  punish  for,  sec.  27,  pp.  174,  181 
may  be  limited  by  law.  sec.  27,  p.  174 
for  what  purposes  power  exercised,  sec.  27,  p.  175 

49 


770  INDEX. 

Contem.'ptS^Coniimied. 

whether  judgment  for,  can  be  reviewed,  sec.  27,  p.  175 

two  kinds  of,  sec.  27,  p.  177 

direct  and  constructive,  defined,  sec.  27,  p.  177 
jurisdiction  in  cases  of,  does  not  depend  upon  express  law,  sec.  72, 

p.  488 
is  a  part  of  inherent  powers  of  courts,  sec.  72,  p.  488 
can  not  be  taken  away  by  legislature,  sec.  72,  p.  488 

rule  applies  to  constructive  contempts,  sec.  72,  p.  489 
but  legislature  may  limit  and  control,  sec.  72,  p.  490 
power  usually  given  and  provided  for  by  statute,  sec.  72,  p.  490 
power  not  confined  to  courts,  sec.  72,  p.  490 
to  what  extent  legislative  bodies  may  exercise,  sec.  72,  pp.  490,  491 

as  respects  the  congress  of  the  United  States,  sec.  72,  p.  49 1 
jurisdiction  depends  on  character  of  contempt,  sec.  72,  p.  491 
may  be  contempt  at  common  law  or  made  so  by  statute,  sec.  72,  p. 

492 
civil  contempts,  what  are,  sec.  72,  p.  492 
do  not  authorize  imprisonment  for  debt,  sec.  72,  p.  492 
imprisonment  until  debt  paid  is  one  for  debt  and  unlawful,  sec.  72, 

p.  492 
no  showing  or  affidavit  necessary  in  direct  contempt,  sec.  72,  p.  492 
court  may  proceed  summarily  on  its  own  knowledge,  sec.  72,  p.  492 
in  case  of  constructive  affidavit  generally  required,  sec.  72,  p.  492 

court  no  jurisdiction  to  act  without,  sec.  72.  p.  492 

must  allege  facts  constituting  contempt,  sec.  72,  p.  493 
return  of  officer  sometimes   sufficient   without  affidavit,  sec.  72,  p. 

493 
but  prima  facie  case  must  be  so  made  as  to  constitute  part  of  record, 

sec.  72,  p.  493 
affidavit  on  information  and  belief,  judgment  not  void,  sec.  72,  p.  493 
held  jurisdiction  does  not  depend  on  form  of  affidavit,  sec.  72,  p.  493 

but  not  in  accordance  with  rule  requiring  affidavit,  sec.  72,  p.  493 
effect  of  judgment,  whether  conclusive  and  final  or  not,  sec.  72,  p. 

493 
better  rule  is  that  is  open  to  review  on  appeal,  sec.  72,  pp.  493,  494 
jurisdiction  of  court  or  general  power  to  punish  for,  always  open  to 

inquiry,  sec.  72,  p.  494 
whether  facts  in  particular  ease  constitute  contempt,  held  not  juris- 
dictional question,  sec.  72,  p.  495 

but  cases  conflicting,  sec.  72,  p.  495 
when  accused  will  be  discharged  on  habeas  corpus,  sec.  72,  p.  495 
legislative  bodies  acts  not  conclusive,  sec.  72,  p.  495 

because  not  courts,  sec.  72,  pp.  495,  496 

power  to  punish  own  members  exclusive  and  not  subject  to  review, 
sec.  72,  p.  496 

extends  to  other  persons,  when,  sec.  72,  p.  496 

as  to  other  persons,  power  not  granted  to  congress,  sec.  72,  p.  496 
committed  in  presence  of  court,  notice  not  necessary,  sec.  72,  p.  496 

but  opportunity  ^o  explain  must  be  given,  sec.  72,  p.  496 
facts  recited  in  commitment  conclusive  on  collateral  attack,  sec.  72, 

p.  496 
when  existence  of  jurisdictional  facts  presumed,  sec.  72,  p.  496 
finding  of  facts  by  court  conclusive,  sec.  72,  pp.  496,  497 
out  of  presence  of  court  notice  necessary,  sec.  72,  p.  497 
what  notice  requi'-ed,  sec.  72,  p.  497 
requirements  of  statute  may  be  waived,  sec.  72,  p.  497 
what  are  jurisdictional  facts,  sec.  72,  p.  498 


I 


INDEX.  771 

Contempts — Continued. 

fact  that  may  be  prosecuted  by  indictment  does  not  affect  jurisdic- 
tion, sec.  72,  p.  498 
is  exclusive  in  court  against  which  offense  committed,  sec.  72,  p.  498 
sole  power  of  federal  courts  derived  from  statutes,  sec.  72,  p.  499 
would  not  be  so  if  statute  did  not  cover  all  inherent  powers,  sec.  72 

p.  499 
but  statute  effective  to  limit  power,  sec.  72,  p.  499 
whether  power  of  United  States  supreme  court  can  be  limited  by 

statute,  sec.  72,  p.  499 
rule  as  to  territorial  courts,  sec.  72,  pp.  499 
and  as  to  inferior  courts,  sec.  72,  pp.  499,  500 
except  as  to  legislative  bodies  power  confined  to  judges  and  courts 

sec.  72,  p.  500 
when  town  council  has  power,  sec.  72,  p.  501 
as  to  the  power  of  notaries  public,  sec.  72,  p.  501 
powers  of  courts  greatly  extended,  sec.  72,  p.  501 
that  court  has  jurisdiction  of  cause  does  not  give  it  of  contempt  sec 
72,  p.  502 
depends  upon  showing  in  contempt  proceeding,  sec.  72,  p.  502 
distinction  between  civil  and  criminal  contempts,  sec.  72,  p.  502 
court  having  law  and  equity  side,  how  contempt  proceeding  docketed 

sec.  72,  p.  502  _ 

sometimes  held  part  of  original  case,  sec.  72,  p.  503 
no  jurisdiction  to  make  order,  none  to  punish  for  violating  it  sec  72 
p.  503  '  ' 

failure  to  attend  as  witness  before  notary,  how  punished,  sec.  72  p 

503 
power  to  strike  out  pleading,  what  must  be  shown,  sec.  72,  p.  504 
where  offense  in  presence  of  court  must  proceed  without  delay  sec 

72,  p.  504 
final  judgment  terminates  jurisdiction,  sec.  72,  p.  504 
Corporations.     (See  Jcrisdictiox,  Process,  Service  of  Process.) 
citizenship  of,  sec.  15,  p.  56 

federal  court  can  not  obtain  jurisdiction  of  property  of  in  other  dis- 
trict by  appointment  of  receiver,  sec.  15,  p.  57 
foreign  on  whom  service  of  summons  may  be  made,  sec.  13,  p.  43 
for  purposes  of  jurisdiction  are  citizens  of  states  creating  them  sec 

15.  p.  56 
but  held  are  also  citizens  of  states  in  which  are  doing  business  sec 

15,  p.  56 
created  by  laws  of  several  states,  citizens  of  either,  sec.  15,  p.  57 
owning  property  in  different  states,  appointment  of  receiver  in  one 
does  not  bring  all  property  within  jurisdiction  of  courts  sec   15 
p.  57 
insolvents'  property  in  different  states  may,  by  statute,  be  brought 

within  jurisdiction  of  court  appointing  receiver,  sec.  15,  p.  58 
how  served  with  process,  sec.  43,  pp.  308-324.     (See  Service  of  Process.) 
when  may  be  sued  in  foreign  states,  sec.  43,  p.  308 

in  what  respect  not  a  citizen,  sec.  43,  p.  310 
on  whom  service  of  process  may  be  made  for,  sec  43,  p.  313 
return  of  officer  as  to  whom  service  was  made  upon,  sec.  43,  p.  316 
meaning  of  "  station  agent."  sec.  43,  p.  316 

and  of  "general  agent,"  and  "managing  agent,"  sec.  43,  p.  317 
doing  business  within  foreign  state,  what  will  subject  to  be  sued, 

sec.  43,  pp.  319,  320 
in  federal  courts  where  may  be  served,  sec.  43,  pp.  321-323 


772''  INDEX. 

Xlorporations —  Continued. 

is  inhabitant  of  state  of  its  creation,  sec.  43,  p.  321 
created  by  act  of  congress,  where  is  an  inhabitant,  sec.  43,  p.  323 
may  be  sued  and  served  in  any  state  wliere  doing  business  sec. 
43,  p.  323 
doing  business  in  another  state  does  not  change  citizenship  of,  sec. 

43,  pp.  323,  324 
power  of  courts  over  by  quo  warranto,  sec.  83,  pp.  659-670.     (See 
Quo  Warranto.) 
Costs— 

excluded  in  fixing  jurisdiction  as  to  amount,  sec.  16,  p.  60 

what  constitutes  costs,  sec.  16,  p.  61 
payment  of  on  change  of  venue  necessary  to  divest  court  of  jurisdic- 
tion sec.  24,  p.  152;  sec.  4a,  p.  343 

Counter  Claim — 

setting  up  does  not  afiPect  jurisdiction  as  to  amount,  sec.  16,  p.  63 

County.     (See  Change  of  Venue,  Venue.) 

action  brought  in  wrong,  objection  how  waived,  sec.  20,  p.  115 
division  of,  eflfect  of  on  jurisdiction  of  court,  sec.  24,  p.  J 47 
Courts.     (See  Common  Law,  Equity,  Judges,  Jurisdiction,  Supreme  Court 

OF  Judicature,  Terms  of  Court.) 
defined,  sec.  1,  p.  1 

judges  of  not  necessarily  the  court,  sec.  1,  p.  1 
to  constitute  court  judges  must  be  in  discharge  of  duties  of  at  time 

and  place  prescribed  by  law,  sec.  1,  p.  1;  sec.  19,  p.  81 
presence  of  clerk  or  prothonotary  necessary  to  constitute,  sec.  1, 

p.  2 
court  of  common  law  defined,  sec.  1,  p.  1 
general  division  of,  sec.  2,  p.  2 

1.  common  law  and  equity, 

2.  military  and  maritime, 

3.  of  record  and  not  of  record, 

4.  of  superior  and  general,  or  of  inferior  and  special  jurisdiction, 

sec.  2,  p.  2 
common  law  and  equity  courts  in  England,  sec.  3,  p.  3 
superseded  by  supreme  court  of  judicature,  sec.  3,  p.  3 
admiralty,  ecclesiastical,  probate,  divorce   and   bankruptcy   courts 
consolidated  in  supreme  court  of  judicature,  in  England,  sec.  3, 
p.  3 
common  law  and  equity  courts  in  the  United  States,  sec.  4,  p.  5 
several  kinds  of  courts  in  the  United  States,  sec.  4,  p.  5 
federal  courts,  different  kinds,  sec.  4,  p.  6 
supreme  court  has  original  jurisdiction  to  limited  extent  both  at  law 

and  in  equity,  sec.  4,  p.  6 
military  and  maritime  courts,  jurisdiction  of,  sec.  5,  p.  6. 
courts  of  record,  what  constitutes,  sec.  6,  pp.  7-10 

defined,  sec.  6,  p.  7. 
courts  of  general  and  superior  and  of  inferior  and  special  jurisdiction 

distinguished,  sec.  7,  pp.  10-15 
nature  of  federal  courts  in  this  respect,  sec.  7,  p.  12 
of  limited  and  of  special  jurisdiction  distinguished,  sec.  7,  p.  10 
will  not  act  if  no  real  controversy,  sec.  12,  p.  33 
appellate,  what  determines  jurisdictional  amount,  sec.  16,  p.  64 
of  concurrent  jurisdiction,  one  first  taking  cognizance  of  action  re- 
tains, sec.  17,  p.  68 
of  concurrent  jurisdiction,  can  not  interfere  with  each  other's  de* 
crees  or  processes  by  injunction  or  otherwise,  sec.  17,  p.  69 


( 


INDEX.  773 

Courts — Continued. 
how  far  one  may  exercise  jurisdiction  over  property  seized  under 

process  from  another,  sec.  17,  p.  71 
seizing  property  in  rem.  generally  has  exclusive  jurisdiction,  sec.  17, 

federal  and  state  have  concurrent  jurisdiction,  sec.  17,  p.  73 
jurisdiction  of,  may  be  ousted  by  creation  of  new  court,  sec.  17,  p.  73 
time  and  place  for  sitting  of,  fixed  by  statute,  sec.  19,  p.  81 
proceedings  of,  at  wrong  time  and  place,  void,  sec.  19,  p.  81 
sessions  of,  usually  presumed  legal,  sec.  19,  p.  82 
where  three  judges  necessary  to  constitute,  and  only  two  hear  argu- 
ment, third  may  sit  at  decision  to  render  proceedings  valid,  sec. 
19,  p.  87 
where  given  discretionary  powers,  no  other  can  interfere  with  exer- 
cise of,  sec.  20,  p.  93 
of  equity,  how  question  of  jurisdiction  raised  in,  sec.  22,  p.  107 
when  may  dismiss  action  on  own  motion,  sec.  22,  p.  Ill 
may  entertain  jurisdiction  or  not  at  discretion,  when,  sec.  22,  p,  111 
of  equity,  when     ill  prevent  enforcement  of  judgment  by  injunc- 
tion, sec.  22,  p.    14 
how  may  be  deprived  of  jurisdiction,  sec.  24,  p.  146 
by  law,  sec.  24,  p.  146 

constitutional  not  by  statute,  sec.  24,  p.  146 
nor  inherent  powers,  sec.  24,  p.  146 

but  subject  to  regulation,  sec.  24,  p.  146 
not  by  agreement  of  the  parties,  sec.  24,  p.  146 
when  may  be  made  concurrent  with  another,  sec.  24,  p.  146 
by  conferring  exclusive  on  another,  sec.  24,  pp.  146,  147 
right  to,  how  limited  by  constitution,  sec.  24,  p.  147 
by  change  of  county,  sec.  24,  page  147 
by  repeal  of  statute  under  which  created,  sec.  24,  p.  147 
by  failure  to  do  act  necessary  to  perpetuate  or  continue,  sec.  24,  pp. 

147-150 
by  failure  to  act  in  time,  sec.  24,  pp.  148,  149 
by  failure  to  render  judgment  in  time,  sec.  24,  p.  149 
distinction   between   rendition  and  entry  of  judgment,  sec.  24,  p. 

149 
by  failure  to  adjourn  to  proper  time,  sec.  24,  p.  149 
by  unauthorized  adjournment,  sec.  24,  p.  149 
by  appeal  or  writ  of  error,  sec.  24,  p.  150 
how  far  appeal  or  writ  suspends  operation  of  judgment,  sec.  24,  pp. 

150,  151 
bond  to  stay  proceedings  usually  required,  sec.  24,  p.  150 
eflfect  of  such  bond,  sec.  24,  p.  150 
by  change  of  venue,  sec.  24,  pp.  151-153 

by  removal  of  cause  from  state  to  federal  court,  sec.  24,  p.  153 
by  raising  issue  not  within  jurisdiction,  sec.  24,  pp.  151,  152 
by  losing  custody  of  property  or  failing  to  give  notice,  sec.  24,  p. 

154 
suspended  between   terms,  and  when  judges  not  present,  sec.  24, 
p.  154 
by  exhausting  jurisdiction,  sec.  24,  p.  155 
not  by  act  of  parties,  sec.  24,  p.  155 
or  change  of  facts  or  condition  of  parties  or  subject-matter, 
sec.  24,  p.  155 
presumptions  in  favor  of  jurisdiction  of,  sec.  25.     (See  Presumptions.) 
in  case  of  court  of  general  jurisdiction,  sec.  25,  pp.  155,  156;  sec. 
26,  pp.  168,  169 


I 


774  INDEX. 

Courts — Continued. 

in  case  of  special,  exercised  by  court  of  general  jurisdiction,  sec. 
25,  pp.  156,  157 

where  acting  in  mode  prescribed  by  statute  and  not  according  to 
course  of  common  law,  sec.  25,  pp.  158-161 

of  proceedings  of  domestic  courts,  sec.  25,  pp.  162,  163  ;  sec.  26,  pp. 
168,  169 

of  foreign  courts,  sec.  25,  p.  163;  sec.  26,  pp.  168-170 

none  against  the  record,  sec.  25,  p.  163 

effect  of  recitals  in  records  of,  sec.  25,  j^p.  163,  164,  165;  sec.  26,  pp. 
168,  169 

that  jurisdiction  obtained  was  properly  exercised,  sec.  25,  p.  167 
inherent  powers  of,  sec.  27 

enumerated,  sec.  27,  p.  170 

sometimes  denominated  incidental  powers,  or  constructive  author- 
ity, sec.  27,  i^p.  172,  173 

necessary  to  proper  discharge  of  duties,  sec.  27,  pp.  173,  177 

can  not  be  taken  away  by  legislature,  sec.  27,  p.  l74 
may  be  limited  and  controlled,  sec.  27,  p.  174 

in  case  of  contempts,  sec.  27,  p.  174 

whether  judgment  of,  may  be  reviewed,  sec.  27,  pp.  175,  176 

to  make  rules,  sec.  27,  p.  177 

to  amend  its  records,  sec.  27,  p.  181 

to  disbar  and  otherwise  punish  attorneys,  sec.  31,  jjp.  198-201 
illegal  courts — 

acts  of,  void,  sec.  28,  p.  181 
de  facto  courts — 

powers  of,  sec.  28,  p.  181;  sec.  60,  pp.  379-386 

what  constitutes,  sec.  28,  jjp.  181-183;  sec.  60,  pp.  379-386 

acts  of,  not  void,  sec.  60,  p.  383 
constitutional  limitations  of  powers  of,  sec.  29 

may  enforce  or  prevent  performance  of  ministerial  duties  or  acts 
of  officers  of  other  departments,  sec.  29,  pp.  183,  184 

but  not  acts  calling- for  exercise  of  judgment  or  discretion,  sec.  29, 

pp.  183,  193  ^ 

or  executive  or  political  acts,  sec.  29,  p.  183  ■ 

ministerial  act,  what  is,  sec.  29,  pp.  185,  186,  187 

judicial  act  defined,  sec.  29,  p.  ISS 

legislative  power  defined,  sec.  29,  pp.  186,  193 

what  are  executive  duties,  sec.  29,  pp.  186,  193 

how  far  courts  may  regulate  legislative  acts,  sec.  29,  pp.  188-191 

departments  of  state,  how  far  independent,  sec.  29,  p.  191 

constitutional  limits  to  be  determined  by  courts,  sec.  29,  p.  191 

courts  may  ajipoint  their  own  officers,  sec.  29,  p.  194 

whether  law  constitutional  courts  must  determine,  sec.  29,  p.  195 

ministerial  acts  can  not  be  imposed  upon  courts,  sec.  29,  p.  194 
summary  jurisdiction  of,  sec.  30.     (See  Summary  Jurisdiction.) 

regulated  by  statute,  sec.  30,  p.  196 

except  inherent  powers,  sec.  30,  p.  197 
control  of  attorneys  by,  sec.  31 

attorneys  officers  of  court,  sec.  31,  p.  198 

courts  have  inherent  power  to  punish,  sec.  31,  p.  198 
and  to  suspend  or  disbar,  sec.  31,  p.  198 

legislature  may  regulate  exercise  of  power,  sec.  31,  p.  198 

statutory  proceedings  must  be  followed,  sec.  31,  p.  198 

attorney  may  be  punished  for  contempt,  how,  sec.  31,  p.  199 


INDEX.  775 

Courts —  Continued. 

may  be  proceeded  against  summarily  for  indictable  oflFense,  sec.  31, 
p.  2U0 
and  before  prosecution  therefor  commenced,  sec.  31,  p.  200 
pardon  for  offense  does  not  affect  the  power  to  disbar,  sec.  31,  p. 

201 
state  court  may  disbar  for  offense  before  federal  court,  sec.  31,  jj. 

201 
diflFerence  between  disbarment  and  striking  name  from  rolls,  sec. 
31,  p.  201 
when  act  on  discretion  without  evidence  notice  not  essential,  sec. 

33,  p.  203 
notice  necessary  to  vest  with  jurisdiction,  sec.  33,  pp.  213,  21-4 
personal  within  the  state,  when  necessary,  sec.  33,  p.  21-4 
legislature  can  not  deprive  party  of  right  to  resort  to,  sec.  33,  p.  222 
but  may  regulate  time  and  manner  of  seeking  remedy  in,  sec.  33,  p. 

222 
appellate,  how  notice  given  of  appeal,  sec.  35,  p.  239 
can  not  order  service  of  process  beyond  territorial  jurisdiction,  sec. 
38,  p.  271 
can  not  act  out  of,  sec.  57,  p.  370 
two  judges  can  not  act  at  same  time,  when,  sec.  57,  p.  370 
constitutional  jurisdiction  of,  sec.  66,  p.  426 
how  conferred,  sec.  66,  p.  426 
can  not  be  taken  away,  changed  or  modified  by  statute,  sec.  66,  p. 

427 
meaning  of  "  cases  at  law"  and  "common-law  jurisdiction,"  as  con- 
ferred by,  sec.  66,  p.  427 
special  proceedings  or  cases  do  not  belong  to,  sec.  66,  pp.  428,  429 
when  court  may  provide  mode  of  procedure,  sec.  66,  p.  430 
objects  of  writs  authorized  to  be  issued  can  not  be  changed  by 
statute,  sec.  66,  p.  431 
probate  jurisdiction  of,  sec.  67,  pp.  431-460.'    (See    Probate   Jurisdic- 
tion.) 
to  what  courts  belong,  sec.  67,  p.  431 
more  broad  and  ample  under  statutes,  sec.  67,  p.  432 
whether  is  special  and  inferior,  sec.  67,  pp.  433--438 
orders  and  decrees  naade  in  exercise  of,  conclusive,  sec.  67,  pp. 

437,  438 
what  included  in  term  probate  matters,  sec.  67,  y>Ii-  439-442 
to  what  extends,  sec.  67,  pp.  439-452 
upon  what  the  jurisdiction  depends,  sec.  67,  pp.  452-454 
what  petition  or  other  pleading  must  show  to  give,  sec.  67,  p.  454 
finding  of  jurisdictional  facts,  eflPect  of,  sec.  67,  p.  455 
maritime  jurisdiction  of,  sec.  70,  p.  483.     (See  Admiralty  and  Maritime 

Jurisdiction.) 
what  have  of  divorce  cases,  sec.  73,  pp.  504,  505.     (See  Divorce.) 
jurisdiction  of,  in  injunctions,  sec.  79,  pp.  588-614 
when  will  be  compelled  to  act  by  mandamus,  sec.  80,  pp.  620-623 
when  prevented  from  acting  by  prohibition,  sec.  81,  pp.  627-638 
how  far  acts  of,  mav  be  inquired  into  by  habeas  corpus,  sec.  82,  pp. 

640-643 
powers  of,  to  grant  new  trials  and  vacate  judgments,  sec.  84,  pp.  670- 

692 
jurisdiction  of,  in  certiorari  proceedings,  sec.  86,  p.  698 
Courts  of  Chancery.     (See  Courts  of  Equity.) 


776  INDEX. 

Courts    of   EC[Uity.      (See   Common   Law;    Common-Law   Jurisdiction; 
Courts;  Equity;  Equity  Jurisdiction;  Jurisdiction.) 
jurisdiction  of,  sec.  9,  p.  23 

consolidated  with  common-law  courts,  sec.  9,  pp.  23,  26 
but  separate  jurisdiction  of,  maintained  in  federal  and  some  of  state 

courts,  sec.  9,  p.  23 
jurisdiction  of,  differs  from  common  law  mainly  in  remedies  admin- 
istered, sec.  9,  p.  23 
is  preventive,  sec.  9,  p.  24 
can  not  be  stated  accurately,  sec.  9,  p.  24 
principle  cases  of  exclusive  jurisdiction,  sec.  9,  p.  24 
is  divided  into  ordinary  and  extraordinary,  sec.  9,  p.  25 
what  gave  rise  to  jurisdiction  of,  sec.  9,  p.  24 
jurisdiction  of,  concurrent  with  courts  of  law  in  some  cases,  sec.  9, 

p.  27;    sec.  17,  p.  71 
actions  formerly  cognizable  in,  become  statutory,  sec.  9,  p.  27 
and  superseded  by  statutory  remedies,  sec.  9,  p.  27 
may  aid  courts  of  law  by  injunction,  sec.  17,  pp.  72-74 
assistant  jurisdiction  of,  sec.  18,  p.  74.     (See  Assistant  Jurisdiction.) 
not  concurrent,  sec.  18,  p.  74 
how  far  superseded  and  taken  away  by  statutory  remedies,  sec.  18, 

pp.  74-81 
question  of  jurisdiction  in,  how  raised,  sec.  22,  pp.  107,  108 
when  will  prevent  enforcement  of  judgment  by  injunction,  sec.  22, 

p.  114 
can  not  order  service  of  process  out  of  jurisdiction,  sec.  38,  p.  271 
power  to  order  service  on  another  for  non-resident  defendant,  sec. 

38,  p.  271 
jurisdiction  of,  in  probate  matters,  sec.  67,  pp.  431-460 
power  of,  to  enjoin  collection  of  taxes,  sec.  79,  pp.  601-606 

to  enjoin  issuance  or  sale  of  municipal  bonds,  sec.  79,  pp.  606-608 
to  enjoin  judicial  proceedings,  sec.  79,  pp.  608-612. 
to  enjoin  action  by  public  officer,  sec.  79,  pp.  612,  613 
have  no  jurisdiction   in  matters  criminal  or  immoral  not  affecting 

property,  sec.  79,  p.  614 
when  will  exercise  jurisdiction  to  grant  new  trials  or  vacate  judg- 
ments, sec.  84,  pp.  682-688 

Courts  of  Record— 

what  constitutes,  sec.  6,  pp.  7-10 
defined,  sec.  6,  p.  7 

Creditors'  Bill- 
original  plaintiff's  claim  sufficient  to  give  jurisdiction,  others  of  less 
amount  may  come  in,  sec.  16,  p.  63. 

Criminal  Jurisdiction- 
controlled  by  express  statutory  and  constitutional  provisions,  sec  69, 

p.  469 
distinction  between  civil  and  criminal  as  to  what  gives  jurisdiction, 

sec.  69,  p.  470 
place  where  crime  committed,  determines,  sec.  69,  p.  470 
party  in  one  state  may  commit  crime  in  another,  sec.  69,  p.  570 
therefore  party  need  not  be  in  state  where  committed  to  give  juris- 
diction, sec.  69,  p.  470 
accessory  before  fact  in  another  state  can  not  be  punished  in  state 

where  crime  committed,  sec.  69,  p.  470 
answerable  in  state  where  he  acted,  sec.  69,  p.  470 
jurisdiction  is  where  crime  was  completed,  sec.  69,  p.  470 


INDEX.  777 

Criminal  Jurisdiction — Continued. 

and  not  where  some  act  constituting  part  of  it  was  committed,  sec. 
69,  p.  470. 

different  rule  under  statutes  in  some  states,  sec.  69,  p.  471 

absence  of  statute  jurisdiction  where  crime  consummated,  sec.  69,  p. 
471 

states  may  pass  laws  making  its  citizens  liable  for  acts  done  out  of 
state,  sec.  69,  p.  471 

proceedings  for  apprehending  criminal  out  of  state  jurisdiction  an- 
cillary to  that  of  courts  where  offense  was  committed,  sec.  69,  p. 
471  _ 

how  such  jurisdiction  brought  into  action,  sec.  69,  p.  471 

statute  authorizing  must  be  strictly  pursued,  sec.  69,  p.  471 

jurisdiction  of  state  courts  over  offenses  committed  by  Indians,  sec. 
69,  p.  471. 

means  by  which  defendant  is  brought  into  state,  does  not  affect 
jurisdiction  to  try  him,  sec.  69,  p.  472 

legality  of  extradition  proceedings  does  not  affect,  sec.  69,  p.  472 

but  treaties  may  limit  jurisdiction,  sec.  69,  p.  472 

extradited  for  one  crime  can  not  be  tried  for  another,  sec.  69,  p.  472 

extradition  from  foreign  country  must  be  through  federal  govern- 
ment, sec.  69,  p.  472 

federal  courts  may  protect  accused  from  trial  in  state  court,  when, 
sec.  69,  p.  472 

brought  to  this  country  by  force  and  not  by  virtue  of  treaty  federal 
courts  can  not  interfere  with  trial  in  state  court,  sec.  69,  p.  472 

accused  must  be  before  court,  service  of  process  not  sufficient,  sec. 
69,  p.  473 

actual  presence  sometimes  dispensed  with  by  statute,  sec.  69,  p.  473 

place  where  offense  committed  must  be  alleged  in  indictment,  sec. 
69,  p.  473 

and  where  jurisdiction  of  court  extends  over  part  of  county  must 
allege  committed  in  that  part,  sec.  69,  p.  473 

otherwise  sometimes  by  statute,  sec.  69,  p.  473 

whether  offense  committed  within  jurisdiction,  question  of  fact  for 
jury,  sec.  69,  p.  473 

controverted  by  plea  of  not  guilty,  sec.  69,  p.  473 

and  burden  of  proof  on  prosecution,  sec.  69,  p.  473  ' 

finding  of  facts  necessary  to  give  jurisdiction  conclusive  on  collateral 
attack,  sec.  69,  p.  473 

but  proof  of  venue  necessary  to  sustain  on  appeal,  sec.  69,  pp.  473, 
474 

how  question  of  may  be  raised,  sec.  69,  p.  474 

where  statute  gives  jurisdiction  after  designated  time,  effect  of  tak- 
ing before  time  expires,  sec.  69,  p.  474. 

when  authorized  to  issue  warrant  on  evidence  of  guilt,  effect  of 
issuing  without,  sec.  69,  p.  475 

aflBdavit  expressing  opinion  not  sufficient  evidence,  sec.  69,  p.  475 

exceptions  to  rule  that  must  be  tried  in  county  where  offense  com- 
mitted, sec,  69,  p.  475 

crime  of  larceny  and  like  offenses  where  property  stolen,  or  in  county 
where  property  found,  sec.  69,  p.  475 
so  where  property  brought  from  another  state,  sec.  69,  p.  475 
and  where  offense  committed  partly  in  different  counties,  sec.  69, 
p.  475 

murder,  usually  where  fatal  blow  was  struck  although  death  occurred 
elsewhere,  sec.  69,  p.  475 
statutes  authorizing  constitutional,  sec.  69,  pp.  475.  -476 


778  INDEX. 

Criminal  Jurisdiction — Continued. 

so  of  statute  authorizing  trial  where  death  occurred  wound  in- 
flicted on  high  seas,  sec.  69,  p.  476 

property  taken  into  county  may  be  alleged  to  have  been  stolen  there, 
sec.  69,  p.  476 

asportation  from  one  county  to  another  new  theft,  sec.  69,  p.  476 

different  rule  in  charge  of  burglary  which  is  local  crime,  sec.  69,  p. 
476 
held  legislature  can  not  authorize  prosecution  of  burglary  in  an- 
other county,  sec.  69,  p.  476 

effect  of  statute  authorizing  prosecution  in  county  where  acts  or 
effects  of  acts  occur,  sec.  69,  p.  477 

statute  authorizing  prosecution  of  oflFense  committed  in  another  state 
held  void,  sec.  69,  p.  477 
but  authorities  disagree,  sec.  69,  p.  477 

wound  inflicted  in  one  state  and  death  in  another  where  jurisdiction 
rests,  sec.  69,  p.  477 

law  requiring  trial  in  county  where  crime  committed  rests  upon 
right  to  jury  of  the  neighborhood,  sec.  69,  p  478 

subject  to  right  to  change  of  venue,  sec.  69,  p.  478 

right  to  trial  by  jury  of  county  can  not  be  taken  awav  by  statute, 
sec.  69,  p.  478 

statute  authorizing  change  of  venue  by  district  attorney  without  de- 
fendant's consent  unconstitutional,  sec.  69,  p.  478 

change  of  venue,  how  court  obtains  jurisdiction,  sec.  69,  p.  479 

when  court  from  which  removed  loses  jurisdiction,  sec.  69,  p.  479 

criminal  action  is  one  at  law,  sec.  69,  p.  479 

and  grant  of  jurisdiction  in  cases  at  law  confers  jurisdiction  of,  sec. 
69,  p.  479 

given  by  constitution  can  not  be  taken  away  by  statute,  sec.  69,  p. 
479 

but  if  not  made  exclusive,  concurrent  mav  be  given  another  court, 
sec.  69,  p.  479 

effect  of  constitution  conferring  on  new  courts  where  jurisdiction  of 
other  courts  already  existing,  sec.  69,  p.  480 

jurisdiction  over  offense  charged  may  convict  of  lesser  offense  within, 
sec.  69,  p.  480 

effect  of  exceeding  jurisdiction  in  fixing  punishment,  sec.  69,  p.  481 

same  act  may  constitute  offense  against  state  and  federal  govern- 
ment and  be  punishable  by  courts  of  both,  sec.  69.  p.  481 

appeal  confers  no  jurisdiction  where  lower  court  had  none,  sec.  69, 
p.  481 

how  prosecutions  for  crime  may  be  commenced,  sec.  69,  pp.  481,  482 
not  necessarily  by  indictment,  sec.  69,  p.  481 
depends  upon  provisions  of  constitution,  sec.  69,  p.  481 

when  examination  before  magistrate  provided  for  such  examination 
necessary,  sec.  69,  p.  482 

held  if  committed  for  one  offense  district  attorney  may  file  informa- 
tion for  another,  sec.  69,  p.  482 

but  correctness  of  the  rule  doubted,  sec.  69,  p.  482 

held  also  magistrate  may  commit  for  other  offense  than  one  charged, 
sec.  69,  p.  482 

where  accused  may  elect  in  which  court  he  will  be  tried  his  election 
gives  exclusive  jurisdiction,  sec.  69,  p.  483 

demand  for  jury  may  deprive  court  of  jurisdiction,  when,  sec.  69,  p. 
483 

where  jurisdiction   depends   upon  whether  offense   "high   and  ag- 
gravated "  indictment  must  charge  the  fact,  sec.  69,  p.  483 


INDEX.  779 

Cross-complaint— 

when  service  of  process  necessary  on  filing,  sec.  44,  p.  324 

B 

Damages- 
appearance  to  contest  amount  of  after  default  not  a  waiver  of  defects 
in  service,  sec.  22,  p.  106 
Decree.    (See  Judgment.) 
De  Facto  Court.    (See  Judges.) 

what  is  and  when  and  how  acts  of  may  be  attacked,  sec.  28,  p.  181- 

sec.  60,  pp.  379-386 
acts  of  not  void,  sec.  60,  p.  383 
Default.     (See  Complaint;  Judgments;  Jurisdiction;  Pleading.s.) 
judgment  by,  on  complaint  amended  after  service  by  publication, 

void,  sec.  8,  p.  22 
appearance  to  set  aside  not  a  waiver  of  defects  in  service,  sec.  22  p 

105 
when  question  of  jurisdiction  may  be  raised  on  appeal,  after,  sec.  22 

p.  113 
when  may  be  entered  without  notice,  sec.  33,  p.  212 

when  instrument  provides  for  judgment  without,  sec.  33,  p.  212 
entered  before  expiration  of  time  to  answer  effect  of,  sec.  38,  pp.  280 
282,  283 

Demurrer- 
objection  of  want  of  jurisdiction  when  raised  by,  sec.  22,  pp.   106 

107,  108,  109,  110,  116 
is  a  statutory  right  in  common  law  actions,  sec.  22,  p.  107 
may  go  to  jurisdiction  of  subject-matter  or  person,  sec.  22,  p.  110 
when  waives  objection  to  jurisdiction,  sec.  22,  pp.  108,  110 
when  failure  to  demur  waives  objection  to  jurisdiction,  sec.  22,  pp. 

109,  110 
by  demurring  on  other  grounds,  effect  of,  sec.  22,  p.  110 
filing  demurrer  a  full  appearance,  sec.  22,  p.  1 10 
objection  by  must  appear  on  face  of  record,  sec.  22,  p.  113 
different  rule  in  federal  courts,  sec.  22,  pp.  113,  114 

Deputy- 
powers  of  general  and  special  in  service  of  process,  sec.  37,  pp.  253, 

254 
power  of  constables  to  appoint,  sec.  37,  p.  254 
how  return  must  be  made  by,  sec.  39,  pp.  293,  294 

Discontinuance- 
effect  of  on  jurisdiction  of  court,  sec.  24,  p.  150 

Discovery— 

by  interrogatories,  sec.  18,  p.  75 

where  law  can  compel,  equity  will  not  interfere,  sec.  18,  p.  79 

what  showing  necessary  to  obtain,  sec.  18,  p.  80 

equity  taking  jurisdiction  to  compel  may  grant  relief,  sec.  18,  p.  80 

a  part  of  assistant  jurisdiction  of  courts  of  equity,  sec.  9,  t).  27;  sec. 

18,  p.  74 
how  far  superseded  and  taken  away  by  statutory  remedies,  sec.  9,  p. 

27;  sec.  18,  pp.  74-81 

Discretion — 

when  court  acts  on  without  evidence  notice  not  essential,  sec.  33,  p. 

213 
will  not  be  controlled  by  mandamus,  sec.  80,  pp.  617,  618 
subject  to  qualification,  sec.  80,  p.  618 


780  INDEX. 

District  Attorney- 
power  of  to  prosecute  by  information,  sec.  33,  pp.  223,  224 

District  Court— 

of  United  States  maritime  jurisdiction  belong.s  to,  sec.  5,  p.  7 

Divorce- 
courts  of  equity  exercise  jurisdiction  over,  sec.  9,  p.  24 
constructive  notice  allowed  in  actions  for,  sec.  38,  p.  270 
power  to  grant  to  whom  belongs,  sec.  73,  p.  504 

is  judicial  power  and  belongs  to  courts,  sec.  73,  p.  504 
special  statute  authorizing  when  unconstitutional,  sec.  73,  p.  504 
formerly  vested  in  ecclesiastical  courts,  sec.  73,  p.  505 
but  now  in  supreme  court,  sec.  73,  p.  505 
in  this  country  given  to  different  courts,  sec.  73,  p.  505 
how  exercised  in  this  country,  sec.  73,  p.  505 
is  wholly  statutory,  sec.  73,  p.  505 
grant  of  common  law  and  equity  jurisdiction  does  not  confer,  sec.  73, 

p.  505 
casBi?  holding  that  jurisdiction  is  equitable,  sec.  73,  p.  506 
but  not  so  as  to  granting  of  divorces,  sec.  73,  p.  506 
matters  connected  with  are,  sec.  73,  p.  506 
action  for  civil  action  under  codes,  sec.  73,  p.  506 
and  grant  of  jurisdiction  in  "civil  cases  both  at  law  and  in  equity  " 

confers,  sec.  73,  p.  506 
what  included  in  jurisdiction,  sec.  73,  p.  506 
granting  divorces, 
allowance  of  alimony 
property  rights, 

custody  and  maintenance  of  children,  sec.  73,  p.  506 
three  latter  incidental  to  granting  divorce,  sec.  73,  p.  506 
but  not  necessarily  dependent  upon  it,  sec.  73,  p.  506 
not  so  in  all  of  the  states,  sec.  73,  p.  506 
to  authorize  disposition  of  property,  issue  as  to  must  be  raised  by 

pleadings,  sec.  73,  p.  507 
means  of  acquiring  jurisdiction  over  divorce,  and  of  incidental  mat- 
ters, different,  sec.  73,  p.  507 
power  to  grant  divorce  affects  status  and  is  not  personal  action,  sec. 

73,  p.  507 
same  as  action  in  rem,  although  erroneously  held  to  be  action  on  con- 
tract, sec.  73,  p.  507 
personal  service  not  necessary,  sec.  73,  p.  507 
but  otherwise  as  to  alimony  sec.  73,  p.  507 

for  alimony  can  not  be  rendered  against  non-resident  on  constructive 
service,  sec.  73,  p.  507 
but  state  may  authorize  against  its  own  citizens,  sec.  73,  pp.  507, 
508 
law  of  domicil  controls  as  to  jurisdiction,  sec.  73,  p.  508 
when  and  why  decrees  of  respected  in  other  states,  sec.  73,  p.  508  ji 

not  universally  respected,  sec.  73,  p.  509  <J° 

some  states  hold  decree  on  constructive  service  a  nullity,  sec.  73,  p. 

509 
extent  of  power  to  grant  in  different  states,  sec.  73,  pp.  509,  510 
when  held  not  to  have  extraterritorial  effect,  sec.  73,  pp.  509,  510,  511 
how  far  decree  affects  property  out  of  state,  sec.  73,  p.  511 
doctrine   that  decree  binding  as  to  one  party  and  not  the  other 

anomalous,  sec.  73,  p.  512 
decree  for  custody  of  children  same  as  for  divorce,  as  to  validity,  sec. 
73,  p.  512 


I 


I 


INDEX.  781 

Divorce —  Continued. 

only  binding  while  children  within  state,  sec.  73,  p.  512 

domicil  of  wife  not  domicil  of  husband  for  purposes  of,  sec.  73,  p.  512 

actual  residence  controls,  sec.  73,  p.  512 

neither  party  resident  of  state  decree  void,  sec.  73,  p.  512 

generally  residence  of  plaintiff  gives  jurisdiction,  sec.  73,  pp.  512,513 

wife  may  acquire  residence  distinct  from  husband,  sec.  73,  p.  513 

must  be  actual  residence,  sec.  73,  p.  513 

non-resident  can  not  sue  though  defendant  a  resident,  sec.  73,  p.  513 

residence  must  be  bona  fide,  sec.  73,  p.  514 

what  will  constitute  sufficient  residence,  sec.  73,  p.  514 

allegation  and  proof  of  necessary,  sec.  73,  p.  514 

admission  of  party  will  not  supply,  sec.  73,  p.  514 

how  jurisdictional  facts  must  appear,  sec.  73,  p.  514 

question  of  residence  one  of  fact,  sec.  73,  p.  514 

finding  of  jorima/acze  evidence  against  collateral  attack,  sec.  73,  p.  514 

whether  conclusive  or  not  authorities  not  agreed,  sec.  73,  p.  515 

decrees  sometimes  held  to  be  final  on  ground  of  public  policy,  sec. 

73,  p.  515 
on  ground  of  public  policy  no  appeal  allowed  in  some  states,  sec.  73, 

p.  515 
finding  as  to  residence  will  not  be  inquired  into  collaterally,  sec.  73, 

p.  515 
decree  rendered  against  non-resident  on  constructive  notice  may  be 

attacked  for  fraud,  sec.  73,  p.  515 
in  some  states  residence  not  only  test  of  jurisdiction,  sec.  73,  p.  516 
place  of  commission  of  oSense  is  one,  sec.  73,  p.  516 
and  parties  must  in  some  states  have  lived  together  within  the 
state,  sec.  73,  p.  516 
federal  courts  have  no  jurisdiction  of  within  the  states,  sec.  73,  p.  516 

but  may  enforce  decree  of  state  court  for  alimony,  sec.  73,  p.  516 
orders  for  alimony  or  for  custody  of  children  subject  to  modification, 

sec.  73,  p.  516 
even  after  final  decree  and  after  term,  sec.  73,  p.  516 
petition  for  alimony,  when  no  notice  necessary,  sec.  73,  pp.  516,  517 
power  to  grant  or  modify  order  for  not  suspended  by  appeal,  sec. 
73,  p.  517 
question  of  jurisdiction  as  affected  by  sufficiency  of  affidavit  for  pub- 
lication, sec.  73,  p.  517 
presumed  that  sufficient  affidavit  made,  when,  sec.  73,  p.  517 
recitals  in  record  presumed  to  be  correct,  sec.  73,  p.  517 
when  affidavit  can  not  be  made  until  after  return  day  of  summons, 

sec.  73,  p.  517 
defective  service  waived  by  appearance,  sec.  73,  p.  518 
what  required  in  addition  to  publication,  sec.  73,  p.  518 
personal  service  necessary  against  resident  defendant,  sec.  73,  p.  518 

Domestic  Judgment.    (See  Judgments.) 

when  subject  to  collateral  attack,  sec.  22,  pp.  121,  122;  sec.  26,  pp. 
168,  169 

Due  Process  of  Law- 
constitution  of  United  States  requires,  sec.  33,  p.  206 
inhibition  applies  to  state  and  state  courts,  sec.  33,  p.  206 

not  confined  to  judicial  proceedings,  sec.  33,  p  206. 

apply  to  laws  enacted  by  congress,  sec.  33,  p.  207 
due  process  of  law  can  not  be  defined,  sec.  33,  p.  207 

meaning  of,  sec.  33,  pp.  208,  212,  213 
liberty,  meaning  of,  sec.  33,  p.  209 


782  INDEX. 

Due  Process  of  Law — Continued. 

constitution  requires: 
notice  to  party, 
opportunity  to  be  heard, 

that  hearing  be  before  court  or  other  lawful  tribunal, 
that  hearing  be  according  to  law  and  established  principles,  sec. 
33,  p.  211 
proceedings  in  court  not  always  necessary,  sec.  33,  pp.  212,  213 
eminent  domain,  personal  notice  not  necessary,  sec.  33,  p.  213 
decision  according  to  discretion,  without  evidence,  notice  not  neces- 
sary, sec.  33,  p.  213 
states  may  provide  kind  of  notice  necessary,  sec.  33,  p.  213 
general  notice  to  all  persons,  when  sufficient,  sec.  33,  pp.  214,  221 
personal  service,  when  necessary,  sec.  33,  pp.  213-218 
when  constructive  notice  sufficient,  sec.  33,  p.  219 
special  appearance,  effect  of,  sec.  33,  p.  219 

legislature  can  not  authorize  injunction,  when,  sec.  33,  pp.  219,  220 
may  provide  what  amount  of  damages  may  be  recovered,  when,  sec. 

33,  p.  220 
notice  not  always  necessary  before  action,  sec.  33,  p.  220 
but  action  without  notice  can  not  be  made  conclusive,  sec.  33,  p.  220 
police  powers  of  states  how  far  may  be  exercised,  sec.  33,  p.  221 
denial  of  jury  trial,  when  denial  of  due  process  of  law,  sec.  33,  pp. 

222-224 
legislature  can  not  deny  right  to  resort  to  courts,  sec.  33,  p.  222 
commitment  of  court  not  having  jurisdiction,  effect  of,  sec.  33,  p 

223 
act  of  de  facto  court  not  void,  sec.  33,  p.  223 
indictment,  or  presentment  by  grand  jury,  not  essential,  when,  sec. 

33,  p.  223 
trial  after  acquittal,  effect  of,  sec.  33,  p.  224 

how  far  statutes  may  lawfully  deprive  citizens  of  their  rights,  sec.  3S 
p.  224 

E 

Eminent  Domain- 
taking  property  by,  owner  entitled  to  notice,  sec.  33,  p.  213 

Equity.     (See  Courts;  Equity  Jurisdiction  ;  Jurisdiction.) 
courts  of,  in  England,  sec.  3,  p.  3 
consolidation  of,  in  England,  into  supreme  court  of  judicature,  sec. 

3,  p.  3 
in  the  United  States,  sec.  4,  p.  5 

but  few  equity  courts  in  the  states  in  this  country,  sec.  4,  pp.  5-6 
in  federal  practice  equity  and  common  law  jurisdiction  exercised  by 

same  court,  sec.  4,  p.  6 
suits  in  consolidated  in  the  "  civil  action"  of  the  codes,  sec.  8,  p.  22; 

sec.  9,  p.  26 
but  distinction  between  and  common  law  action  in  matters  of,  sub- 
stance remains,  sec  8,  p.  22;  sec.  9,  p.  23 
distinction  not  so  important  as  formerly,  sec.  9,  p.  23 
distinction  maintained  in  practice  in  federal  and  some  of  state  courts, 

sec.  9,  p.  23 
difference  between  jurisdiction  in  and  at  common  law  mainly  in 

remedies  administered,  sec.  9,  p.  23 
jurisdiction  of  courts  of,  preventive,  sec.  9,  p.  24 
what  gave  rise  to  jurisdiction  of  courts  of,  sec.  9,  p.  2i 
cases  of  equitable  jurisdiction  enumerated,  sec.  9,  p.  24 
jurisdiction  is  ordinary  and  extraordinary,  sec.  9,  p.  25 


INDEX.  783 

Equity —  Continued. 

distinction  between  suits  in  and  actions  at  law  abolished  by  the 

codes,  sec.  9,  p.  26 
jurisdiction  in  courts  of,  sometimes  concurrent  with  courts  of  law, 

sec.  9,  p.  27 
actions  that  were  cognizable  in,  made  statutory,  sec.  9,  p.  27 
courts  of,  may  aid  courts  of  law  by  injunction,  sec.  17,  pp.  71,  72 
may  restrain  proceedings  in  court  of  law,  when,  sec.  17,  p.  72 
injunction  must  run  against  party,  not  court,  sec.  17,  p.  72 
assistant  jurisdiction  of  courts  of,  sec.  19,  p.  81 

how  far  assistant  jurisdiction  superseded  and  taken  away  by  statu- 
tory remedies,  sec.  18,  pp.  74-81. 
question  of  jurisdiction  in  courts  of,  how  raised,  sec.  22,  pp.  107,  108 

Equity  Jurisdiction.     (See  Courts;  Common  Law  Jurisdiction;  Courts 
OF  Equity;   Equity;   Jurisdiction.) 
often  conferred  by  constitution  or  statute,  sec.  10,  p.  28 
in  aid  of  law  courts  by  injunction,  sec.  17,  pp.  72,  73 
how  question  of,  raised,  sec.  22,  p.  107 

intermingle  by  statute  with  common  law  constitutional  and  statu- 
tory, sec.  65,  p.  420 
has  been  modified  by  statute,  sec.  65,  pp.  420,  421 
courts  of  general  jurisdiction  usually  vested  with,  sec.  65,  p.  421 
how  granted,  sec.  65,  p.  421 

statutes  have  provided  diflferent  modes  of  exercising,  sec.  65,  p.  422 
as  to  question  of  jurisdiction,  distinction  between,  and  common  law 

not  so  important  as  formerly,  sec.  65,  p.  422 
given  by  constitution  can  not  be  taken  away  by  statute,  sec.  65,  p. 

424 
in  matters  of  probate  and  settlement  of  estates  and  guardianships, 

sec.  67,  pp.  439-452 
in  divorce  cases,  sec.  73,  pp.  504,  506 
none  in  attachment,  sec.  74,  p.  519 
ne  exeat  is,  sec.  78,  p.  581 
injunction  is,  sec.  79,  588 

extent  of,  pp.  79,  sec.  589,  590 
but  has  become  largely  statutory,  sec.  79,  p.  588 
of  federal  courts  can  not  be  increased  by  state  laws,  sec.  79,  p.  589 
to  enjoin  proceedings  in  other  courts,  sec.  79,  pp.  608-612 
when  will  be  exercised  to  grant  new  trials  or  vacate  judgments,  sec. 

84,  pp.  682-688 
Evidence.     (See  Discovery  ;  Perpetuation  of  Testimony;   Witnesses.) 
depositions,  where  may  be  taken,  sec.  18,  p.  75 

production  of  documents  may  be  compelled,  and  how,  sec.  18,  p.  75 
how  far  rules  of  may  be  changed  as  against  vested  rights,  sec.  33, 

p.  224 
Exclusive  Jurisdiction.    (See  Concurrent  Jurisdiction  ;  Jurisdiction.) 
defined,  sec.  9,  p.  28,  note  1 

given  to  one  court,  no  other  court  can  exercise,  sec.  17,  p.  68 
given  by  constitution  to  one  court  can  not  be  conferred  on  another 

by  legislature,  sec.  17,  p.  68;  sec.  24,  p.  146 
otherwise  where  conferred  by  constitution,  but  not  made  exclusive, 

sec.  17,  p.  68;   sec.  24,  p.  116 
but  legislature  can  not  take  away  jurisdiction  given  by  constitution, 

sec.  17,  p.  68 
constitutional,  may  be  enlarged,  but  not  diminished,  sec.  17,  p.  68 
courts  having  concurrent,  first  assuming,  has  exclusive  jurisdiction, 

sec.  17,  p.  68 


784  INDEX. 

Exclusive  Jurisdiction — Continued. 

actions  in  rem,  court  first  seizing  property  has,  sec.  17,  p.  72 
but  not  where  notice  without  seizure  gives  jurisdiction,  sec.  17,  p.  72 
where  new  remedy  provided  to  be  pursued  in  particular  court,  juris- 
diction exclusive,  sec.  17,  p.  72 
admiralty  exclusive  in  federal  courts,  sec.  17,  p.  73 
not  confined  to  tide  waters,  sec.  17,  p.  73 

Execution- 
proceedings  supplementary  to,  sec.  18,  p.  75 
proceedings  supplementary  to,  equity  will  not  entertain  jurisdiction 

over,  where  court  of  law  has,  sec.  18,  p.  76 
proceedings  supplementary  to,  jurisdiction  of  equity  over,  obsolete, 

sec.  18,  p.  78 

Executive  Department.     (See  Governor.) 

how  far  acts  of,  may  be  controlled  by  courts,  sec.  29,  pp.  183,  195 
executive  acts,  what  are,  sec.  29,  pp.  186,  193 
powers  of,  in  matter  of  pardons,  sec.  90,  pp.  742-745 
Executors.     (See  Probate  Jurisdiction;  Sales  of  Real  Estate.) 

question  of  legal  appointment  of,  how  raised  in  case  of  sale  of  real 

estate  by,  sec.  76,  p.  556 
whether  in  such  case  appointment  of,  can  be  collaterally  attacked, 

sec.  76,  pp.  556,  557 
what  is  necessary  to  give  court  jurisdiction  to  order  sale  by,  sec.  76, 

pp.  557,  558 
petition  is  foundation  of  jurisdiction,  sec.  76,  p.  558 
what  petition  must  show,  sec.  76,  p.  558 

order  for  sale  an  adjudication  of  all  jurisdictional  facts,  sec.  76,  p.  560 
notice  must  be  given,  sec.  76,  pp.  563-566 
whether  heir  a  necessary  party,  sec.  76,  p.  564 
Extradition.     (See  Criminal  Jurisdiction.) 

whether  proceedings  legal  or  not  does  not  affect  jurisdiction  to  try 

for  offense,  sec.  69,  p.  472 
party  extradited  for  one  crime  can  not  be  tried  for  another,  sec.  69, 
p.  472 
federal  courts  may  protect  from,  sec.  69,  p.  472 
how  far  proceeding  for,  may  be  inquired  into  by  habeas  corpus,  sec. 
82,  pp.  643-647 

F 
Federal  Courts- 
principal  federal  courts,  sec.  4,  p.  6 
maritime  jurisdiction  belongs  to,  sec.  5,  p.  6 
whether  are  inferior  courts  or  not,  sec.  7,  p.  12;  sec.  25,  p.  162 
are  of  limited  but  not  of  special  jurisdiction,  sec.  7,  p.  14;  sec.  25, 

p.  162 
pleading  must  allege  amount  necessary  to  give  jurisdiction,  sec.  16, 

p.  62 
amount  pleaded  not  conclusive  as  to  jurisdiction,  sec.  16,  p.  63 
causes  not  cognizable  in,  may  be  remanded  to  state  courts,  sec.  22,  j 

p.  106 
have  concurrent  jurisdiction  with  state  courts,  sec.  17,  p.  73 
dismissal  of  causes  in,  for  want  of  jurisdiction,  sec.  22,  p.  106 
question  of  jurisdiction  how  raised  in,  sec.  22,  pp.  107,  116 
presumptions  in  favor  of  jurisdiction  of,  sec.  25,  p.  162 
whether  appearance  in  state  court  to  remove  to,  gives  jurisdiction, 

sec.  34,  p.  226 


INDEX.  785 

Federal  Courts — Continued. 

equitable  jurisdiction  of,  in  the  settlement  of  estates,  sec,  67,  pp.  450, 

451 
admiralty  and  maritime  jurisdiction  of,  sec.  70,  pp.  483-487 
have  no  jurisdiction  in  divorce  proceedings  within  the  states,  sec.  73, 

p.  516 
equitable  jurisdiction  of,  can  not  be  increased  by  state  laws,  sec.  79, 

p.  589 
power  of,  to  enjoin  proceedings  in  state  courts,  sec.  79,  p.  609 
jurisdiction  of,  in  mandamus,  sec.  80,  p.  625 
power  of,  under  writ  of  prohibition,  sec.  81,  pp.  627-638 
jurisdiction  of,  to  issue  writs  of  habeas  corpus,  sec.  82,  pp.  649-655 
jurisdiction  of  state  courts  to  inquire  into  proceedings  of,  by  habeas 

corpus,  sec.  82,  pp.  655-658 
power  of,  to  set  aside  judgments  of  state  courts  for  fraud,  sec.  84,  p. 

684 

Findings— 

of  courts,  effect  of,  as  evidence  of  jurisdiction,  sec.  23,  pp.  126-145 
as  to  what  matters  are  conclusive,  sec.  23,  pp.  126,  127,  128,  129 
difference  between,  and  decision  that  court  has  jurisdiction,  sec.  23, 

p.  126 
distinction  between  domestic  and  foreign  judgments  as  to  effect  of, 

sec.  23,  pp.  124,  125,  127-145 
of  notice  in  probate  proceedings,  eflfect  of,  sec.  67,  p.  460 
of  jurisdictional  facts  in  proceedings  for  sale  of  real  estate,  sec.  76, 

pp.  560,  561 

Foreclosure  of  Mortgage- 
courts  of  equity  have  jurisdiction  of,  sec.  9,  p.  24 
on  lands  situate  partly  in  different  states,  courts  of  either  may  fore- 
close as  to  all,  sec.  15,  p.  55 

Foreign  Judgment— 

when  subject  to  collateral  attack,  sec.  22,  p.  121 ;  see.  26,  p.  169 

Fraud— 

a  ground  of  equitable  jurisdiction,  sec.  9,  p.  24 

jurisdiction  obtained  by,  will  not  be  maintained,  sec.  22,  p.  117 

setting  up  by  answer  that  service  procured  by,  not  waiver  of  service, 

sec.  34,  p.  232 
decree  of  divorce,  when  may  be  set  aside  on  ground  of,  sec.  73,  p. 

515 

Fraudulent  Conveyances- 
action  to  set  aside,  courts  of  equity  have  jurisdiction  of,  sec.  9,  p.  24 
action  to  set  aside,  constructive  notice  allowed,  sec.  38,  p.  270 

G 

Garnishment- 
principles  affecting  similar  to  attachment,  sec.  75,  p.  547 

object  of  the  proceeding,  sec.  75,  p.  547 

differs  from  attachment  in  that  seizure  of  projjerty  not  necessary, 
sec.  75,  pp.  547,  548 

is  ancillary  to  main  action,  sec.  75,  p.  548 

in  what  respect  same  as  attachment  as  to  what  necessary  to  uphold 
it,  sec.  75,  p.  548 

jurisdiction  may  rest  upon  garnishment  proceedings,  sec.  75,  p.  548. 

question  of  debt  between  garnishee  and  defendant  treated  as  in- 
dependent, sec.  75,  p.  549 

50 


786  INDEX. 

Garnishment —  Continued. 

as  to  aflSdavit  general  principles  same  as  in  attachment,  sec.  75,  p.  549 

same  as  to  bond,  sec.  75,  p.  549 

who  may  object  to  sufficiency  of  bond,  sec.  75,  p.  549 

as  to  necessity  of  notice  in  main  action,  sec.  75,  p.  550 

in  lieu  of  seizure  of  property  notice  to  garnishee  required,  sec.  75, 

p.  550 
notice  in  nature  of  actual  levy,  sec.  75,  p.  550 
how  garnishee  bound  by  notice,  sec.  75,  p.  550 
from  time  of  notice  property  in  custody  of  court,  sec.  75,  p.  550 
may  be  in  form  of  summons,  sec.  75,  p.  550 
how  doctrine  of  waiver  of  notice  differs  from  rule  in  attachment, 

sec.  75,  p.  550 
garnishee  not  a  party,  and  can  not  waive  notice,  sec.  75,  jjp.  550,  551 

nor  the  making  of  aflSdavit,  sec.  75,  p.  551 
may  waive  defects  affecting  himself,  sec.  75,  p.  551 
how  far  defendant  may  waive  notice  or  defects,  sec.  75,  p.  551 
nothing  peculiar  about  proof  of  service,  sec.  75,  p.  551 
jurisdiction  as  to  amount  what  controls,  sec.  75,  p.  551 
where  proceeding  must  be  brought,  sec.  75,  pp.  551,  552 

against  foreign  corporations,  sec.  75,  pp.  551,  552 
non-resident  garnishee  not  subject  to  constructive  notice,  sec.  75,  p. 

552 
nor-residence  of  defendant  immaterial  if  property  found  in  hands 

of  garnishee,  sec.  75,  p.  552 
must  be  property  within  jurisdiction  subject  to  execution,  sec.  75, 

p.  552 
on  what  cause  of  action  garnishment  will  lie,  sec.  75,  p.  553 
how  far  garnishee  interested  in  question  of  jurisdiction,  sec.  75,  p. 

553 
how  far  may  question  judgment  in  main  action,  sec.  75,  p.  553 
Governor.     (See  CoNSTiTunoNAii  Limitation.s.) 

how  far  acts  of  in  proceedings  for  reiurn  of  fugitives  from  justice 

may  be  inquired  into  by  habeas  corpus,  sec.  82,  pp.  643-645 
power  of  in  matter  of  pardon,  sec.  90,  pp.  742-745.     (See  Pardons.) 

Grand  Jury—  i 

impaneled  by  court  not  having  jurisdiction,  action  of  void,  sec.  33,  p.      I 

223 
indictment  by  not  essential  to  due  proces  of  law,  sec.  33,  pp.  223,  224 

Guardian- 
appearance  may  be  made  by,  sec.  34,  p.  225  ,t 
but  not  without  service  on  ward,  sec.  34,  p.  234 
cases  to  the  contrary,  sec.  34,  p.  234 

power  of,  to  waive  service  of  process  on  ward,  sec.  41,  pp.  300,  301 
ad  litem,  eflPect  of  appointment  and  appearance  of,  without  service  on 

minor,  sec.  41,  pp.  301,  302 
deed  of,  what  necessary  to  uphold,  sec.  76,  p.  555  m 

question  of  leirality  of  appointment  of,  how  raised  in  case  of  sale  of     ^ 
real  estate  by,  sec.  76,  p.  556  *• 

whether  in  such  case  appointment  can  be  collaterally  attacked,    '^ 
sec.  76,  i>.  557 
what  necessary  to  give  court  jurisdiction  to  order  sale  of  real  estate 

by,  sec.  76,  pp.  557,  558 
petition  is  foundation  of  jurisdiction,  sec.  76,  p.  558 
what  petition  must  show,  sec.  76,  pp.  558,  561 
notice  must  be  given,  sec.  76,  p.  563 
whether  ward  a  necessary  party,  sec.  76,  p.  564 


i 


INDEX.  787 

Guardian  ad  litem.    (See  Guardian.) 

etfect  of  appointment  and  appearance  by,  without  service  on  minor, 

sec.  41, "pp.  301,302 
failure  to  appoint  where  has  been  service,  effect  of,  sec.  41,  p.  302 
failure  to  appoint  in  proceedings  for  sale  of  real  estate,  effect  of,  sec. 

76,  p.  566 

H 

I      Habeas  Corpus— 

'  question  of  jurisdiction  may  be  raised  by,  sec.  22,  p.  112 

[  object  of  the  writ,  sec.  82,  pp.  638,  639 

right  to,  exists  independently  of,  and  can  not  be  taken  away  by, 
statute,  sec.  82,  p.  639 

power  to  issue,  generally  given  to  all  superior  courts,  state  and  na- 
tional, sec.  82,  p.  639 

appeal  generally  allowed  in  cases  of,  sec.  82,  p.  639 

if  not,  certiorari  lies,  sec.  82,  p.  639 

ground  of  doctrine  in  some  states  that  can  be  no  appeal,  sec.  82,  p. 
I  639  ff      ,  ,k' 

causes  for,  not  generally  provided  by  statute,  sec.  82,  pp.  639,  640 
general  principles  upon  which  was  issued  by  courts  in  England  con- 
trol courts  of  this  country,  sec.  82,  p.  640 
causes  for,  have  been  increased  and  powers  of  courts  extended,  sec. 

82,  p.  640 
can  issue  against  judicial  officers  only  to  test  jurisdiction,  sec.  82,  p. 

640 
to  what  extent  jurisdiction  may  be  inquired  into,  sec.  82,  pp.  640-643 
excessive  or  unwarranted  sentence  imposed,  when  ground  for  the 

writ,  sec.  82,  pp.  641-643 
sufficiency  of  indictment,  when  may  be  inquired  into,  sec.  82,  p.  643 
surrender  of  fugitive  from  justice,  how  far  proceedings  for,  may  be 

tested  by,  sec.  82,  pp.  643-645 
when  writ  will  lie  to  test  sufficiency  of  evidence,  sec.  82,  p.  645 
judgment  of  competent  court,  sufficiency  of,  will   not  be  inquired 

into,  sec.  82,  pp.  646,  647 
when  question  whether  law  under  which  court  acted  was  constitu- 
tional may  be  determined  by,  sec.  82,  pp.  646,  647 
and  where  statute  repealed,  sec.  S2,  pp.  646,  647 
petitioner  may  be  discharged  before  or  after  iinal  judgment,  sec.  82, 

p.  647 
judgment  out  of  term  time  void  and  writ  will  issue,  sec.  82,  p.  647 
must  be  actual  imprisonment,  sec.  82,  p.  648 

writ  confined  to  question  of  release  or  recommitment,  sec.  82,  p.  648 
can  not  determine  property  rights,  sec.  82,  p.  648 
is  a  writ  of  right,  sec.  82,  p.  648 

but  courts  have  discretion  as  to  issuance  of,  sec.  82,  p.  648 
applies  where  one  not  speedily  brought  to  trial,  sec.  82,  p.  648 
effect  of  failure  to  bring  to  trial,  sec.  82,  pp.  648,  649 
when  question  of  legality  of  confinement  must  be  determined  from 

the  record,  sec.  82,  p.  649 
extent  of  jurisdiction  of  federal  courts  over,  sec.  82,  pp.  649-658 
power  of  state  courts  over  proceeding  in  federal  courts,  sec.  82,  pp. 

654-658 
and  of  imprisonment  by  federal  officers,  sec.  82,  p.  656 
generallv  held  denial  of  writ  no  bar  to  another  application,  sec.  82, 

p.  658 
but  order  discharging  bars  further  prosecution,  when,  sec.  82,  p.  658 
territorial  jurisdiction  of  courts  in  cases  of,  sec.  82,  p.  658 


I 


788  INDEX. 

Habeas  Corpus — Continued. 
may  issue  from  one  judge  and  be  returnaoie  to  another,  sec.  82,  p. 

658 
change  of  venue,  application  for,  when  ground  for  the  writ,  sec.  82, 

pp.  658,  659 

I 

Impeachment,  sec.  71 
jurisdiction  of,  usually  vested  in  political  body,  sec.  71,  p.  487 
of  federal  officer  in  whom  power  vested,  sec.  71,  p.  487 
senate  acquires  jurisdiction,  how,  sec.  71,  p.  487 
impeachment  of  officer  does  not  aflFect  jurisdiction  of  courts  to  try 

him  for  same  offense,  sec.  71,  p.  487 
jurisdiction  of  impeachment  of  state  officers,  sec.  71,  p.  488 

Imprisonment  for  Debt — 

by  ne  exeat  not  a  violation  of  constitutional  provision  against,  sec.  78, 
p.  583 
Incidental  powers.     (See  Inherent  Powers.) 

Indictment — 

found  by  grand  jury  impaneled  by  court  not  having  jurisdiction,  void, 

sec.  33,  p.  223 
not  essential  to  due  process  of  law,  sec.  33,  pp.  223,  224 
must  allege  that  crime  was  committed  within  jurisdiction  of  court, 
sec.  69,  p.  473  , 

if  not,  subject  to  demurrer,  sec.  69,  p.  474 
or  motion  to  quash,  sec.  69,  p.  474 
or  motion  in  arrest  of  judgment,  sec.  69,  p.  474 
jurisdiction  determined  by,  and  not  by  verdict,  when,  sec.  69,  p.  480 
when  sufficiency  of,  may  be  inquired  into  by  habeas  corpus,  sec.  82, 
p.  643 
Inferior  Courts.     (See  Courts;  Jurisriction.) 
what  are,  sec.  6,  p.  7;   sec.  7,  p.  10 

distinction  between,  and  courts  of  general  jurisdiction,  sec.  7,  p.  10 
difference  between  courts  of  limited  and  of  special  jurisdiction,  sec. 

7,  p.  14 
limitation  by  constitution  of  power  to  create,  effect  of,  sec.  24,  p.  147 
may  punish   for  contempt,  sec.  27,  p.  181 
power  of,  to  punish  for  contempt,  sec.  72,  p.  499 

whether  have  power  to  grant  new  trials  and  vacate  judgments,  sec. 
84,  p.  671 
Inferior  Jurisdiction.     (See  Special  Jurisdiction.) 

Inherent  Powers— 

of  courts  to  set  aside  their  judgments,  sec.  22,  p.  121 
generally,  sec.  27 
enumerated,  sec.  27,  p.  170 

sometimes  treated  of  as  incidental  powers,  sec.  27,  p.   171 
necessary  to  transaction  of  business  of  courts,  sec.  27,  p.  173 
can  not  be  taken  away  by  legislature,  sec.  27,  p.  174 
but  may  be  limited  and  controlled,  sec  27,  p.  174 
to  punish  for  contempt,  sec.  27,  p.    175 
to  enact  rules,  sec.  27,  p.   177 
to  grant  new  trials,  sec.  27,  p.  180;  sec.  84,  p.  671 
of  inferior  courts,  sec.  27,  pp.  180,  181 
to  amend  records,  sec.  27,  p.  181 

to  disbar  and  otherwise  punish  attorneys,  sec.  31,  pp.  198-201 
in  contempt   proceedings  generally,  sec.  72,  pp.  488-504  (see  Con-' 
tempts) 


I 


INDEX.  789 

Injunctions- 
courts  of  equity  have  jurisdiction  of,  secr9,  p.  24 
may  issue  in  aid  of  proceedings  in  law  court,  sec.  17,  pp.  71,  72 
to  prevent  proceeding  at  law  when,  sec.  17,  p.  72 
must  run  against  party,  not  court,  sec.  17,  p.  72 

when  enforcement  of  judgment  will  be  prevented  by,  sec.  22,  p.  il4 
legislature  can  not  authorize  when,  sec.  33,  pp.  219,  220 
is  an  equitable  remedj-,  sec.  79,  p.  588 
but  has  become  statutory,  sec.  79,  p.  588 
remains  much  the  same  as  it  was  under  equity  practice,  sec.  79    p. 

588 
combination  of  common  law  and  equity  under  codes  has  not  changed, 

sec.  79,  p.  589 
jurisdiction  of  appellate  courts  over,  sec.  79,  p.  589 
statutes  have  extended  jurisdiction  in  aflfording,  sec.  79,  p.  589 
of  federal  courts  can  not  be  increased  by  state  laws,  sec.  79,  p.  589 
particular  classes  of  cases  considered,  sec.  79,  pp.  589,  590 
grounds  upon  which  relief  will  be  granted,  sec.  79,  p.  590 
can  not  be  had  where  an  adequate  remedy  at  law,  sec.  79,  p.  591 
and  want  of  must  be  affirmatively  shown,  sec.  79,  p.  591 
what  will  amount  to  adequate  remedy  at  law,  sec.  79,  pp.  591-594 
solvency  of  defendant  when  material,  sec.  79,  p.  592 
extraordinary  remedy  at  law  will  defeat  right,  sec.  79,  p.  593 
against  whom  may  issue,  sec.  79,  p.  594 
granting  of,  rests  in  discretion  of  court,  sec.  79,  p.  594 
power  usually  confined  to  courts  of  original  jurisdiction,  sec.  79,  p. 

594 
how  far  may  be  exercised  by  appellate  courts,  sec.  79,  pp.  594-600 
right  to,  lost  by  failure  to  ask  in  time,  sec.  79,  p.  600 
when  courts  may  enjoin  collection  of  taxes,  sec.  79,  pp.  600-606 
power  to  enjoin  issuance  and  sale  of  municipal  bonds,  sec.  79,  pp. 

606-608 
power  to  enjoin  judicial  proceedings  and  when  will  be  exercised,  sec. 

79,  pp.  608-612 
power  to  restrain  acts  of  subordinate  tribunals  or  officers,  sec.  79,  pp. 

612,  613 
courts  can  not  control  action  by  independent  department  of  govern- 
ment, by,  sec.  79,  p.  613 
can  not  be  used  to  determine  title  to  office,  sec.  79,  p.  613 
no  jurisdiction  in  criminal  cases,  not  affecting  property,  sec.  79,  p.  614 
temporary,  may  be  granted  without  notice,  sec.  79,  p.  614 
but  only  until  notice  given,  sec.  79,  p.  614 
notice  may  be  waived,  sec.  79,  p.  614 
Interest- 
plaintiff  may  bring  amount  within  jurisdiction  by  failing  to  claim. 

sec.  16,  p.  62 
excluded  in  fixing  jurisdiction  as  to  amount,  sec.  16,  p.  60 
interest  on  amount  of  verdict,  effect  on  appellate  jurisdiction  as  to 

amount,  sec.  16,  p.  65 
same,  interest  on  judgment,  sec.  16,  p.  65 

Interpleader— 

within  jurisdiction  of  courts  of  equity,  sec.  9,  p.  24 

Issne— 

raising,  not  within  jurisdiction  of  court,  effect  of,  sec.  24,  p.  153 


I 


790  INDEX. 

J 

Judges— 

de  facto,  what  is,  sec.  28,  p.  181 

assuming  to  act  as,  of  a  court  not  existing,  acts  void,  sec.  28,  pp.  181, 

182 
must  hold  under  color  of  office  to  be  de  facto,  sec.  28,  p.  182 
attorneys,  when  may  act  as,  sec.  28,  p.  182 

can  not  be  required  to  perform  ministerial  duties,  sec.  29,  p.  194 
disqualified,  application  for  change  from,  unnecessary,  sec.  47,  p.  33.5 
knowledge  of,  what  may  aid  defective  affidavit  for  change,  sec.  47,  p. 

341 
defined,  sec.  53,  p.  354 
all  officers  performing  judicial  functions  considered  here,  sec.  53,  p. 

354 
what  officers  acting  judicially  not,  sec.  53,  p.  354 
what  officers  are,  sec.  53,  p.  355 
power  of  legislature  to  confer  and  take  away  jurisdiction,  sec.  54 

powers,  may  be  constitutional  or  by  virtue  of  statute,  sec.  54,  p.  355 
if  constitutional,  legislature  can  not  limit  or  control,  sec.  54,  p.  355 

can  not  be  given  to  commission,  sec.  54,  pp.  355,  356 
legislature  can  not  vest  non-judicial  officers  with  judicial  powers, 
sec.  54,  p.  356 
nor  can  such  powers  be  conferred  by  consent,  sec.  54,  p.  356 
same  officer  may  perform  judicial  and  other  functions,  sec.  54,  p. 

356 
but  power  to  confer  judicial  and  other  powers  on  same  officers  de- 
pends on  constitution,  sec.  54,  p.  356 
diflFerent  departments  of  government  separated  by  constitutions, 

sec.  54,  p.  356 
under  such  constitutions  judicial  powers  can  not  be  given  to  execu- 
tive or  legislative  officers,  sec.  54,  p.  356 
same  where  constitution  vests  all  judicial  power  in  courts,  sec. 
54,  pp.  356,  357 
what  acts  not  within  constitutional  inhibition,  sec.  54,  p.  357 
effect  of  constitutional  provision  on  existing  statutes  vesting  juris- 
diction in  officers  not  named  therein,  sec.  54,  p.  357 
power  vested  in  courts  by  constitution  can  not  be  vested  in  judges 

by  statute,  sec.  54,  pp.  357,  358 
when  question  whether  judicial  or  not  may  be  determined  from 

legislative  act,  sec  54,  p.  358 
judge  may  have  jurisdiction  over  matters  of  which  his  court  has 

none,  sec.  54,  p.  358 

contempt,  power  of  non-judicial  officer  to  punish  for,  sec.  54,  p.  359 

when  judge  can  not  be  deprived  of  office  by  statute,  sec.  54,  p.  360 

special  judges,  power  of  legislature  to  provide  for,  sec  54,  p.  360 

■power  of  legislature  to  impose  other  than  judicial  duties  on  judges,  sec.  55 

judges  can  not  be  compelled  to  perform  non-judicial  duties,  sec.  55, 

p.  361 

but  may  perform  ministerial  functions,  sec.  55,  p.  362 

nature  of  act  not  changed  because  performed  by  a  judge,  sec.  55, 

p.  362 

can  not  perform  other  than  judicial  duties  under  some  constitu- 
tions, sec.  55,  p.  362 
inhibition  applies  to  state  and  not  to  municipal  governments,  sec. 

55,  p.  362 
different  powers  often  conferred  on  inferior  tribunals  and  officers, 
sec.  55,  p.  363 


« 


I 


INDEX.  791 

Judges —  Continued. 

when  judge  may  perform  ministerial  duties,  sec.  55,  p.  364 
attempt  to  perform  duties  belonging  to  other  department,  acts 
void,  sec.  55,  p.  364 
an  act  of  legislature  attempting  to  authorize  such  performance 
unconstitutional,  sec.  55,  pp.  364,  365 
general  powers  and  duties  of  judges,  sec.  56 
are  judicial,  sec.  56,  p.  365 

certain  of  must  be  performed  by  court,  others  by  judges  at  cham- 
bers, sec.  56,  p.  365 
can  not  be  delegated  to  others,  sec.  56,  p.  365 
if  imposed  by  constitution,  can  not  be  relieved  of  by  statute,  sec. 

56,  p.  365 
usually,  but  not  always,  cease  with  termination  of  office,  sec.  56,  p. 

365 
what  acts  may  be  done  after  term  of  office  expires,  sec.  56,  p.  365 
powers  confined  to  territorial  limits,  sec.  56,  p.  366 

exceptions  to  this  rule,  sec.  56,  p.  366 
power  to  appoint  officers  and  employees,  sec.  56,  p.  366 
can  not  fix  salary  of  court  reporter,  sec.  56,  p.  366 
power  to  act  in  another  district,  sec.  57 

generally  limited  to  county  or  district  over  which  court  has  juris- 
diction, sec.  57,  p.  366 
but  power  to  act  elsewhere  may  be  given  by  statute,  when,  sec.  57, 
p.  366 
provision  for  frequently  made,  sec.  57,  p.  .^66 
held,  that  as  state  officers,  may  act  in  other  districts  without  statu- 
tory authority,  sec.  57,  p.  367 
but  better  rule  the  other  way,  sec.  57,  p.  367 
in  some  states  provided  for  by  constitution,  sec.  57,  p.  367 
authority  of  federal  judges  in  other  districts,  sec.  57,  pp.  367,  368 
when  statutes  authorizing  judge  to  act  in  other  county  or  district, 

valid,  sec.  57,  p.  369 
where  act  must  be  done  by  court  can  not  be  done  out  of  the  terri- 
tory where  action  pending,  sec.  57,  p.  370 
exceptions  to  rule,  sec.  57,  p.  370 
two  judges  can  not  act  at  same  time  for  same  court,  when,  sec.  57, 

p.  370 
when  special  and  regular  terms  may  be  held  at  same  time,  sec.  57, 

p.  370 
presumptions  in  favor  of  acts  of  judge  from  another  district,  sec.  57, 

p.  371 
law  providing  for  calling  in  non-resident  judge  must  be  complied 

with,  sec.  57,  p.  371 
power  to  "hold  court,"  what  included  in,  sec.  57,  p.  371. 
power  of  legislature  to  authorize   under  constitution   giving  such 

power,  sec.  57,  p.  371 
performs  all  the  duties  of  resident  judge,  when,  eec.  57,  p.  371 
powers  of  resident  judge  suspended,  sec.  57,  pp.  .'571,  372 
by  whom  bill  of  exceptions  settled,  sec.  57,  p.  372 
where  may  be  settled  and  signed,  sec.  57,  p.  372 
can  not  act  out  of  state,  sec.  57,  p.  372 
authority  at  chambers,  sec.  58 

acts  by  courts  must  be  done  in  term  time,  sec.  58,  p.  372 
exceptions  by  statute,  sec.  58,  pp.  372,  373 
such  statutes  exceptional  and  rare,  sec.  58,  p.  373 
acts  that  may  be  done  at  chambers  usually  provided   by  statute, 
sec.  58,  p.  .'"73 


792  INDEX. 

Judges — Continued. 

and  in  some  cases  held  must  be,  sec.  58,  p.  373 

incidental  to  jurisdiction  of  the  court,  sec.  58,  p.  373 

and  can  be  exercised  only  over  matters  of  which  court  has  juris- 
diction, sec.  58,  p.  373 

powers  given  to  court  by  constitution  can  not  be  vested  in  judge, 
by  statute,  sec.  58,  p.  374 

power  established  by  long  usage,  sec.  58,  p.  375 

existed  at  common  law,  sec.  58,  p.  375 

and  included  in  general  grant  of  jurisdiction  to  court,  sec.  58,  p.  .'175 

but  usage  not  applicable  to  special  powers  granted  by  statute, 
sec.  58,  p.  375 

held  power  to  "hold  court"  in  another  district  does  not  authorize 
to  act  at  chambers,  sec.  58,  p.  375 

but  usually  judge  called  in  has  all  powers  of  resident  judge,  sec. 

58,  pp.  375,  376 

powers  at  chambers,  as  usually  granted,  enumerated,  sec.  58,  p.  376 
can  not  issue  injunction  to  operate  beyond  jurisdiction  of  court, 

sec.  58,  p.  376 
power  independent  of  terms  of  court,  sec.  58,  p.  376 
authority  in  vacation,  sec.  59 

can  not  perform  functions  of  court  in  vacation,  sec.  59,  p.  377 
unless  expressly  authorized  by  statute  and  not  forbidden  by  con- 
stitution, sec.  59,  p.  377 
entry  of  judgment  ministerial  act,  and  may  be  performed  in  va- 
cation, sec.  59,  p.  377 
court  may  be,  by  law,  always  in  session  for  urgent  business,  sec. 

59,  p.  377 

■when  "court"   and  "judge"  are  synonymous  in  granting  power, 

sec.  59,  p.  377 
acts  in  vacation,  when  judicial  acts  of  the  court,  sec.  59,  p.  377 
orders  that  may  be  made  at  chambers  may  be  made  in  vacation; 
as  a  rule,  sec.  59,  p.  378 
de  jure  ayid  de  facto  judges,  sec.  60 
who  is  a  de  facto  officer,  sec.  60,  pp.  379-383 
color  of  title,  when  must  be  shown,  sec.  60,  pp.  380,  381 
and  reputation  of  being  an  officer,  sec.  60,  p.  381 
mere  exercise  of  duties  of  office  not  enough,  sec.  60,  p.  382 
must  assume  to  act  as  judge,  sec.  60,  p.  382 

attorney  appointed  to  act  as  special,  not  de  facto  judge,  sec.  60,  p. 
382     ' 
exception  when  irregularly  appointed  where  appointment  au- 
thorized, sec.  60,  p.  382 
can  be  no  judge  dejure  or  de  facto  if  no  court,  sec.  60,  p.  382 
acts  of  de  facto ]\xdge  not  invalid,  sec.  33,  p.  223;  sec.  60,  p.  383 

nor  subject  to  collateral  attack,  sec.  60,  p.  383 
but  whether  de  facto  judge  or  mere  intruder  may  be  questioned  col- 
laterally, sec.  60,  p.  383 
question  of  right  to  office  must  be  raised  by  direct  action  for  that 

purpose,  sec.  60,  p.  383 
nature  of  such  action,  sec.  60,  p.  383 
mistake  as   to   termination  of  office,  action  in  good  faith,  effect 

of,  sec.  60,  pp.  383,    384 
failure  to  comply  with  condition  subsequent  to  election,  as  to  give 
bond,  effect  of,  sec.  60,  p.  384 
is  rightful  officer  until  right  forfeited  by  direct  action,  sec.  60,  p. 
384 


I 


I 

I 


INDEX.  793 

Judges — Continued. 

appointment  unaer  unconstitutional  statute,  effect  of,  sec.  60,  p. 

3S4 
may  be  both  de  jure  and  de facto  judge  at  same  time,  sec.  60,  p.  385 
but  not  two  of  either,  sec.  60,  p.  385 

nor  can  a  de  facto  and  de  jure  judge  be  in  actual  possession  of,  or 
exercising  duties,  of  office  at  same  time,  sec.  60,  p.  386 
rule  that  upholds  acts  of  de  facto  judge  extends  to  all  his  duties, 

sec.  60,  p.  386 
special  judges,  sec.  61 
who  are,  sec.  61,  p.  387 

power  to  appoint  attorneys  to  act  as,  sec.  61,  pp.  387,  388 
how  judge  of  another  county  or  district  may  be  called  to  act  as, 

sec.  61,  pp.  388,  389 
when  cause  for,  must  apfjear  on  face  of  record,  sec.  6 1 ,  p.  389 
authority  will  be  presumed,  when,  sec.  61,  p.  389 
recital  in  record  showing  necessary  facts,  effect  of,  sec.  61,  p.  390 
regular  judge  can  not  excuse  himself  and  appoint  special,  when, 

sec.  61,  p.  390 
when  and  how  objection  to  appointment  may  be  made,  sec.  61,  p. 

390 
when  objection  obviated  by  new  appointment,  sec.  61,  p.  391 
same  presumptions  apply  to  proceedings  of,  as  to  regular  judges, 

sec.  61,  p.  391 
record  showing  regular  appointment,  when  conclusive,  sec.  61,  p. 

391 
attorney  acting  by  consent  only,  acts  of  void,  sec.  61,  p.  391 
when  appointment  not  in  writing,  will  be  held  insufficient,  sec.  61, 

p.  391 
effect  of  failure  to  appoint  in  writing  on  acts  of,  sec.  61,  p.  39) 
are  voidable  only  and  not  void,  sec.  61,  p.  391 
failure  to  take  oath  of  office,  effect  of,  sec.  61,  p.  392 
prohibition,  when  will  lie  to  prevent  action  by,  sec.  61,  p.  392 
failure  to  appear  and  act,  effect  of,  sec.  61,  p.  392 
extent  of  powers  of  attorney  appointed  as,  controlled  by  statute, 

sec.  61,  pp.  392,  393 
when  given  all  powers  of  regular  judge,  may  sign  bill  of  excep- 
tions after  term  of  appointment,  sec.  61,  p.  393 
powers  of  judge  called  from  another  district  limited   by  constitu- 
tion and  statutes,  sec.  61,  p.  393 
may  follow  cause  if  transferred  to  another  county,  sec.  61,  pp.  393, 

394 
special,  can  not  appoint  another  judge,  sec.  61,  p.  394 
can  not  hold  court  while  regular  judge  is  sitting,  sec.  61,  p.  394 
to  try  particular  cause,  mav  retry  same  if  reversed  on  appeal,  sec. 

61,  p.  394  '  " 

appointed  for  disqualification  of  regular  judge,  may  continue  after 

another  judge  not  disqualified  takes  the  bench,  sec.  61,  pp. 

394,  395 
to  try  particular  cause,  what  includes,  sec.  61,  p.  395 
special  judge  who  refuses  may  be  compelled  to  act,  sec.  61,  p.  395 
judges  disqualified  by  interest  or  otherivise,  sec.  62 
may  be  wholly  disqualified  by,  sec.  62,  p.  395 
disqualification  can  not  be  removed  by  consent,  sec.  62,  p.  395 
what  interest  will  disqualify,  sec.  62.  pp.  395-400 
general  interest  as  tax-payer,  effect  of,  sec.  62,  pp.  396,  397 
bias  or  prejudice  of  judge,  effect  of,  sec.  62,  p.  396 


794  INDEX. 

Judges —  Continuea. 

compared  with  the  interest  that  will  disqualify  a  juror,  sec.  62,  p 

399 
circumstances  that  will  disqualify  enumerated,  sec.  62,  p.  400 
pecuniary  interest  in  result,  having  been  of  counsel,  consan- 
guinity or  affinity,  bias  or  prejudice,  sec.  62,  p.  400 
forbidden  by  law  to  act,  his  acts  void,  sec.  62,  pp.  401,  402 
and  should  be  so  if  disqualified  by  interest,  whether  forbidden  to 
act  or  not,  sec.  62,  p.  402 
and  whether  objection  is  made  by  parties  or  not,  sec.  62,  pp. 

402-408 
held  otherwise  in  some  cases,  sec.  62,  p.  403 
effect  where  one  of  several  judges  disqualified,  sec.  62,  p.  408 
where  transfer  to  another  county  is  authorized  on  account  of,  judge 

must  pass  upon  question  of  disqualification,  sec.  62,  p.  408 
and  if  exists,  must  order  transfer,  sec.  62,  p.  408 
to  what  extent  not  disqualified  to  act,  sec.  62,  p.  409 

where  failure  to  act  will  deprive  parties  of  all  remedy,  sec.  62,  p. 
409 
if  persists  in  acting,  how  may  be  prevented,  sec.  62,  p.  410 
when  refuses  to  act,  when  not  disqualified,  how  may  be  compelled 

to  act,  sec.  62,  p.  411 
not  disqualified  in  appellate  court  because  of  having  acted  in  lower 

court,  sec.  62,  p.  411 
disqualified  to  hold  the  office,  effect  of,  sec.  62,  p.  412 
bias  and  prejudice  of  the  judge  as  affecting  jurisdiction,  sec.  63 
is  usually  made  ground  for  change  of  venue,  sec.  63,  p.  412 
but  not  in  some  of  the  states,  see.  63,  p.  412 
may  arise  from  causes  which  disqualify,  sec.  63,  p.  413 
but  is  extended  to  causes  not  involving  personal  interest,  sec.  63, 
p.  413 
but  as  to  the  latter  may  be  waived  by  parties,  sec.  63,  p.  414 
and  if  objection  not  made  in  time  proceedings  not  void,  sec.  63, 
p.  414 
liability  of  judge  acting  without  jurisdiction,  sec.  64 

wholly  without  jurisdiction,  liable  as  trespasser,  sec.  64,  p.  414 
but  if  has  jurisdiction  of  subject-matter  and  person,  not  liable  for 

acts  in  excess  of  jurisdiction,  sec.  64,  p.  414 
not  liable  for  error  of  judgment,  sec.  64,  p.  414 

even  where  result  of  lack  of  care  or  prudence,  sec.  64,  p.  414 
or  where  done  maliciously,  sec.  64,  p.  414 
test  of  liability  is   that  which  distinguishes  void  from  voidable  or 

erroneous  judgments  or  proceedings,  sec.  64,  p.  415 
immunity  where  act  is  malicious  does  not  extend  to  quasi  judicial 

officers,  sec.  64,  p.  415 
and  judge  liable  for  conspiracy  with  others  to  prosecute  through 

his  court,  sec.  64,  p.  415 
when  must  determine  in  advance  whether  has  power  to  act,  effect 

of  erroneous  decision,  sec.  64,  p.  416 
when  justice  of  the  peace  liable  for  issuing  warrant  for  act  not 

constituting  public  offense,  sec.  64,  p.  417 
protection  extends  only  to  judicial  acts,  sec.  64,  p.  417 
in  some  cases  confined  to  judges  of  superior  courts,  sec.  64,  p.  417 
but  this  distinction  not  warranted,  sec.  64,  pp.  417,  418 
enough  if  judge  has  jurisdiction  of  general  subject-matter,  sec.  64, 

p.  418 
exemption  from  liability  is  for  the  public  good,  sec.  64,  pp.  418,  119 


INDEX.  795 

Jadg'8S —  Continued. 

judge  deprived  of  jurisdiction  by  change  of  venue,  liable  if  pro- 
ceeds further,  sec.  64,  p.  419 
when  action  by,  will  be  compelled  by  mandamus,  sec.  80,  pp.  620, 
622 
Judgments.     (See  Courts;  Jurisdiction.) 
may  be  both  erroneous  and  void,  sec.  8,  p.  17 
judgment  may  be  void  for  want  of  jurisdiction,  although  court  has 

jurisdiction  of  subject-matter  and  of  person,  sec.  8,  p.  17 
erroneous,  can  only  be  attacked  directly,  sec.  8,  pp.  17,  18 
court  must  have  power  to  render  particular  judgment  or  void  for 

want  of  jurisdiction,  sec.  8,  p.  17 
power  to  render  is  jurisdiction,  sec.  8,  p.  19 
taken  on  complaint,  amended  after  service  by  publication,  void,  sec. 

8,  p.  22 
without  pleadings  or  other  statement  of  parties,  void,  sec.  8,  p.  23 
foreign  and  domestic,  distinctions  between,  as  to  recitals  in  record, 

sec.  13,  p.  41 
decree  in  rem,  only  persons  notified  affected  by,  sec.  14,  pp.  49,  50 
right  to  set  aside  final,  not  incidental  to  courts  of  inferior  jurisdic- 
tion, must  be  expressly  authorized,  sec.  20,  p.  93 
where  power  to  set  aside  is  given,  mode  prescribed  must  be  followed, 

sec.  20,  p.  93 
equity  will  not  enjoin  enforcement  of,  because  irresular  or  void,  sec. 

22,  p.  114 
but  must  be  inequitable,  sec.  22,  p.  115 

rijiht  to  vacate  void  judgments  inherent  in  courts,  sec.  22,  p.  115 
must  be  vacated  or  changed  during  term,  when,  sec.  22,  p.  115 
void  on  face,  may  be  set  aside,  sec.  22,  p.  121 
such  relief  may  be  obtained  by  motion,  sec,  22,  p.  121 
but  better  rule  is  that  action  is  necessary  after  term  in  which  was 

rendered,  sec.  22,  p.  121 
but  court  is  not  bound  after  term  to  enforce,  when  void,  sec.  22,  p. 

121 
can  not  be  rendered  on  Sunday,  sec.  19,  p.  83 
can  not  be  rendered  in  vacation,  sec.  19,  pp.  84,  85 
rendered  in  vacation  not  validated  by  consent  of  parties,  sec.  19,  p.  85 
rendered  during  term  may  be  entered  in  vacation,  when,  sec.  19,  p.  86 
motion  to  vacate,  when  question  of  jurisdiction  raised  bj^  sec.  22,  p. 

Ill 
jurisdiction  may  be  questioned  by  action  to  set  aside,  sec.  22,  p.  Ill 
effect  of  recitals  in,  as  evidence  of  jurisdiction,  sec.  23,  pp.  126-145- 
sec.  25,  pp.  163-165 
not  rendered  within  time  limited,  effect  of,  sec.  24,  pp.  148,  149 
distinction  between  rendition  and  entry  of,  sec.  24,  p.  149 
appeal  or  writ  of  error,  effect  of,  on,  sec.  24,  p.  150 
bond  to  stay  proceedings,  when  necessary  to  suspend  operation  of, 
sec.  24,  p.  150 
effect  of  stay  bond  on,  sec.  24,  pp.  150,  151 
rendition  of  one  of  two  authorized,  alternative,  exhausts  jurisdic- 
tion of  court,  sec.  24,  p.  155 
presumptions  in  favor  of,  sees.  25,  26 

of  courts  of  special  jurisdiction,  sec.  25,  p.  156 

of  court  of  general  exercising  special  jurisdiction,  sec.  25,  pp.  156, 

157 
where  court  proceeds  according  to  statute,  and  not  the  common 
law,  sec.  25,  pp.  158-161 


I 


I 


796  INDEX. 

Judgments —  Continued. 

of  domestic  courts,  sec.  25,  pp.  162,  163 
of  foreign  courts,  sec.  25,  p.  163 
of  federal  courts,  sec.  25,  p.  162 
where  the  attack  is  direct,  sec.  25,  p.  165 
entry  of,  when  conclusive  as  to  jurisdiction,  sec.  25,  p.  165 
by  default,  presumptions  as  to,  sec.  25,  pp.  167,  168 
without  jurisdiction,  void,  sec.  26,  p.  168 

exception  where  shows  jurisdiction  on  its  face,  sec.  26,  p.  168 
or  where  jurisdiction  will  be  presumed,  sec.  26,  p.  169 
recitals  in  record,  when  conclusive,  sec.  26,  ji.  169 
effect  of  void  judgment,  sec.  26,  p.  169 
void,  court  of  equity  will  not  set  aside,  sec.  26,  p.  170 
personal,  can  not  be  rendered  on  constructive  service,  sec.  38,  pp. 

267,  268 
personal,  defined,  sec.  38,  p.  268 
when  void  for  want  of  sufficient  affidavit  for  constructive  notice,  sec. 

38,  pp.  271-279 
when  invalid  because  of  interest  of  judge  as  former  attorney  for  one 

of  parties,  sec.  47,  pp.  337,  338 
entry  of,  not  a  judicial  act,  sec.  59,  p.  377 

in  contempt  proceedings,  whether  final  or  not,  sec.  72,  pp.  493,494 
in  case  of  contempt,  when  void,  sec.  72,  p.  494 
effect  of,  and  credit  given  to,  in  divorce  cases,  sec.  73,  pp.  508-513 
what  may  be,  in  attachment,  sec.  74,  p.  539 
when  courts  of  equity  will  vacate  or  enjoin  enforcement  of,  sec.  79, 

pp.  608-612 
how  far  validity  of,  may  be  inquired  into  by  habeas  corpus,  sec.  82,  pp. 

638-659 
how  and  for  what  causes  reviewed  by  certiorari,  sec.  86,  pp.  698-722 
or  by  bill  or  writ  of  review,  sec.  87,  pp.  722-727 
and  by  appeal,  sec.  88,  pp.  727-737 
jurisdiction  in  naturalization  proceedings,  sec.  89,  pp.  737,  742.    (See 

Naturalization.) 
new  trials  and  vacation  of, 

by  what  means  party  may  be  relieved  from  erroneous  or  void  judg- 
ment, sec.  84,  pp.  670,  671 
audita  querela  almost  obsolete  but  exists  in  some  states,  sec.  84,  p. 

671  A 

its  objects,  sec.  84,  p.  671  "m 

power  to  grant  new  trials  inherent,  sec.  84,  p.  671  * 

and  can  not  be  taken  away  by  statute,  sec.  84,  p.  671 
whether  inferior  courts  possess,  sec.  84,  pp.  671,  672 
distinction  made  between  power  to  vacate  and  modify,  and  to 

grant  new  trials,  sec.  84,  p.  672 
inherent  powers  may  be  limited  and  controlled,  and  this  has 

been  done,  sec.  84,  pp.  672,  673 
statutes  provide  the  time  when  and  means  by  which  relief  may 

be  had,  sec.  84,  p.  673 
statute  not  grants  of  but  limitations  upon  the  power,  sec.   84,  p. 

673 
extent  and  object  of  the  inherent  power  to  give  relief,  sec.  84, 

p.  673 
for  mere  errors,  within  legislative  control,  sec.  84,  p.  673 
courts  have  control  over  their  judgments  until  end  of  term,  sec. 

84,  pp.  673,  674 
and  may,  within  the  term,  vacate  or  modify  its  judgments  or 
grant  new  trials,  sec.  84,  p.  674 


I 


INDEX.  797 

Judgments — Continued. 

after  term  judgments  final  and  power  over  ceases,  sec.  84,  p.  674 
and  can  only  be  regained  by  new  proceedings,  sec.  84,  p.  674 
what  necessary  to  give  jurisdiction  of  new  proceeding,  sec.  84 

p.  674 
notice,  how  served,  sec.  84,  p  674 
may  be  waived,  sec.  84,  p.  674 
requirement  that  judgment  must  be  vacated  during  term,  may 

be  waived,  sec.  84,  p.  674 
when  proceeding   for  new  trial  under  statutes  must  be  com-^ 

menced,  sec.  84,  pp.  675,  676,  678 
if  court  acts  after  time  limited  proceedings  void,  sec.  84,  p.  676 

some  cases  to  the  contrary,  sec.  84,  p.  676 
time  can  not  be  extended  unless  authorized  by  statute,  sec.  84 

p.  676 
except  by  consent  of  parties,  sec.  84,  p.  676 
party  may  be  relieved  from  a  failure  to  act  in  time  in  case  of  fraud 

or  mistake,  sec.  84,  pp.  676,  677 
statutory  exceptions  to  rule  that  proceedings  must  be  commenced 

within  certain  time,  sec.  84,  pp.  676,  677 
exceptions  independently  of  statute,  sec.  84,  p.  677 
statute  limiting  time  how  far  binding  on  the  courts,  sec.  84,  pp. 

677,  678 
judgment  may,  by  statute,  be  made  final  before  end  of  term,  sec. 

84,  p.  679 
.appeal  does  not  deprive  court  of  power  over  judgment  during 

term,  sec.  84,  p.  680 
statutes  are  limitations  of  groumds  for  new  trial  and  vacation  of 

judgment,  as  well  as  to  tiyne,  sec.  84,  pp.  680,  681 
limitations  apply  only  to  erroneous  and  not  to  void  judgments 

sec.  84,  p.  681 
latter  open  to  attack  at  any  time.  sec.  84,  p.  681 
but  not  necessarily  where  invalidity  does  not  appear  on  face  of 

record,  sec.  84,  p.  681 
right  to  new  trial  confined  to  grounds  specified  in  statute,  sec. 

84,  p.  682 
and  made  the  basis  of  the  motion,  sec.  84,  p.  682 
courts  of  equity  may  grant  new  trials  and  vacate  judgments  of 

other  courts,  sec.  84,  pp.  682,  683 
how  far  and  for  what  causes  such  power  will  be  exercised,  sec. 

84,  pp.  682,  683 
how  far  one  court  may  vacate  or  set  aside  proceedings  of  court 

of  concurrent  jurisdiction,  sec.  84,  pp.  6S3,  684 
can  not  upon  mere  motion,  sec.  84,  p  683 
but  may  by  independent  action,  sec.  84.  p.  683 
not  however,  while  action   is  still  pending  in   the  other  court, 

sec.  84,  p.  683 
an  adequate  remedy  by  motion  in  court  rendering  judgment, 

other  court  will  not  interfere,  sec.  84.  p.  683 
but  refusal  does  not  rest  on  want  of  jurisdiction,  sec.  84,  pp.  683, 

684 
federal  courts,  power  of,  to  set  aside  proceedings  of  state  courts, 

sec.  84,  p.  684 
statutes  authorizing  vacation  or  review  do  not  take  away  general 

equity  jurisdiction  to  vacate  and  annul,  sec.  84,  p.  684 
power  does  not  extend  to  correction  of  errors,  sec.  84.  p.  685 
courts  of  chancery  proceed  on  equitable  grounds,  sec.  84,  p.  685 


I 


798  INDEX. 

Judgrments — Continued. 

will  not  vacate  because  void  unless  inequitable,  sec.  84,  p.  685 
what  character  of  fraud  will   authorize  vacation  of  judgment, 

sec.  84,  pp.  685,  688 
must  be  extrinsic  or  collateral   to  the  matter  determined  by  the 

court,  sec.  84,  p.  685 
fact  that  judgment  procured  by  perjury   or  false  evidence  will 

not  authorize,  sec.  84,  pp.  686,  687 
different  rule  in  some  states,  sec.  84,  p.  687 
court  of  equity  will  not  interfere  if  other  adequate  remedy,  sec. 

84,  p.  688 
proceeding  to  vacate  can  not  retry  questions  of  law  or  fact,  sec. 

84,  p.  688 
appropriate  remedy  in  court  of  equity  by  bill  of  review,  sec.  84, 

p.  688 
remedy  abolished  in  some  states,  sec.  84,  p.  688 
but  original  action  of  like  nature  may  be  prosecuted,  sec.  84,  p.. 

688 
new  trial  may  be  granted  of  part  of  issues,  sec.  84,  p.  688 
but  not  as  to  finding  of  part  of  facts,  sec.  84,  p.  688 
proceeding  to  vacate  bv  court  rendering,  usually  by  motion,  sec. 

84,  p.  689 
when  relief  can  not  be  obtained  by  action  in  another  court,  sec. 

84,  p.  689 
when  only  by  independent  action,  sec.  84,  pp.  689,  690 
for  relief  on  account  of  errors,  remedy  is  by  motion  for  new 

trial  in  court  rendering  judgment,  sec.   84,  p.  690 
writ  of  coram  nobis,  what  is  and  objects  of,  sec.  84,  p.  690 
and  writ  of  recordari,  sec.  84,  p.  690 
remedy  by  motion  held  a  direct  attack,  sec.  84,  p.  690 
after  final  determination  of  action,  to  what  remedy  by  motion 

confined,  sec.  84,  p.  690 
when  independent  action  necessary,  sec.  84,  p.  690 
order  vacating  not  generally  reviewable  by  court  making  it,  sec. 

84,  pp.  690,  691 
but  may  be  set  aside  during  term,  sec.  84,  p.  691 
to  what  court  and  where  motion  for  new  trial  must  be  made,  sec. 

84,  p.  691 
action  to  annul  where  must  be  brought,  sec.  84,  p.  691 
in  federal  courts  decision  on  not  subject  to  review,  sec.  84,  p. 

691 
how  far  motion  for  is  addressed  to  discretion  of  court,  sec.   84, 

p.  691 
exception  to  ruling  on,  how  taken,  sec.  84,  p.  691 
new  trial  as  of  right,  when  allowed,  sec.  84,  p.  692 
whether  new  trial  can  be  had  after  entry  of  judgment,  sec.  84, 

p.  692 
when  affirmance  on  appeal  not  a  bar  to  motion,  sec.  84,  p.  692 

Judicature  Act- 
vests  legal  and  equitable  jurisdiction  in  same  court  in  England,  sec. 
9,  p.  25 
Judicial  Department.     (See  Courts;  Judges.) 
powers  and  duties  of,  sec.  29,  pp.  183-196 

how  far,  may  control  acts  of  officers  in  other  departments,  sec.  29, 
pp.  183-196 

Judicial  notice— 

of  what  will  be  taken,  sec.  12,  p.  32 


INDEX.  799 

Jurisdiction.  (See  Actions;  Admiralty  and  Maritime  Jurisdiction; 
Appeals;  Appearance;  Appellate  Jukisdiction  ;  Assistant  Juris- 
diction; Attachment;  Arbitration;  Bills  and  Writs  ok  Review; 
Certiorari;  Change  of  Venue;  Concurrent  Jurisdiction;  Consti- 
tutional Jurisdiction;  Contempts;  Courts;  Criminal  -Jurisdiction; 
Divorce;  Due  Process  of  Law;  Equity  Jurisdiction;  Exclusive 
Jurisdiction;  Garnishment;  Habeas  Corpus;  Homesteads;  Inher- 
ent Powers;  Injunctions;  Judges;  Judgments;  Jurisdiction  as  to 
Amount;  Jurisdiction  of  Person;  Mandamus;  Means  op  Acquir- 
ing; Naturalization;  Ne  Exeat  and  Arrest  and  Bail;  New  Trials 
AND  Vacation  of  Judgments;  Original  Jurisdiction;  Presumptions,- 
Probate  Jurisdiction;  Process;  Prohibition;  Q^^'o  Warranto; 
Sales  of  Real  Estate;  Service  of  Process;  Special  Jurisdiction; 
Subject-matter;  Summary  Jurisdiction;  Terms  of  Court;  Terri- 
torial Jurisdiction;  Venue;  Waiver;  Writs  of  Error.) 
of  particular  courts, 

of  courts  of  superior  and  general  jurisdiction,  sec.  2,  p.  2 
of  courts  of  special  and  inferior  jurisdiction,  sec.  2,  p.  2 
federal  courts  exercise  both  common  law  and  equity,  sec.  4,  p.  6 
of  military  and  maritime  courts,  sec.  5,  p.  6 
federal  have  only  limited,  sec.  7,  p.  14 
courts  of  record  have  common  law,  sec.  9,  p.  28 
defined,  sec.  8,  pp.  16-23 

limited  and  special  distinguished,  sec.  7,  p.  14 

diflference  between  void  and  erroneous  acts,  sec.  8,  p.  17 

must  have  power  to  render  particular  judgment  given,  sec.  8,  p.  19 

of  subject-matter,  what  is,  sec.  8,  p.  19 

is  it  necessary  that  point  decided  be  within   issues  ?  sec.   8,  pp. 

20,21 
authority  to  hear  and  determine  is  jurisdiction  to  try  and  decide 

all  questions  involved,  sec.  8,  p.  22 
by  publication,   amendment  of  complaint,  judgment  by  default, 

void,  sec.  8,  p.  23 
common  law  defined,  sec.  9,  p.  28 
different  kinds  of,  sec  9,  p.  23 

common  law  and  equity,  sec.  9,  p.  23 

differ  mainly  in  remedies  administered,  sec.  9,  p.  23 

how  remedies  administered  differ,  sec.  9,  pp.  23,  24,  25 

principal  cases   or  suits  of  exclusive  equity  jurisdiction,   sec.   9, 

p.  24 
in  chancery,  divided  into  ordinary  and  extraordinary,  sec.  9,  p.  25 

difference  between,  sec.  9,  p.  25 
formerly  common  law  and  equity  administered  in  separate  courts, 

sec.  9,  p.  25 
now  by  same  court  in  England,  sec.  9,  p.  25 
and  under  the  codes  in  this  country,  sec.  9,  p.  26 
but  differently  tried,  how,  sec.  9,  p.  27 
some  formerly  equitable  have  become  statutory,  sec.  9,  p.  27 
other  divisions  applicable  to  both  equitable  and  common  law,  sec. 

9,  p.  28 

how  conferred  and  regulated, 

federal  courts  by  constitution  and  acts  of  congress,  sec.  10,  p.  28 
state  courts  by  state  constitutions  and  statutes,  sec.  10,  p.  28 
generally  provided  that  shall  have  common  law  and  equity,  sec. 

10,  p.  29 

so  of  admiralty  and  maritime,  sec.  10,  p.  29 

courts  of  general  exercise  common-law  jurisdiction,  sec.  10,  p.  29 


800  INDEX. 

Jurisdiction —  Continued. 

grant  of,  must  proceed  from  competent  authority,  sec.  10.  p.  29 

can  not  be  conferred  by  unconstitutional  statute,  sec.  10,  p.  29 

of  state  courts  can  not  be  conferred  by  act  of  congress,  sec.   10, 

p.  29 
may  be  exercised  according  to  rules  of  common  law  or  by  special 

direction  or  informally,  sec.  10,  p.  29 
must  be  exercised  in  manner  provided  by  statute,  sec.  10,  p.  29 
none  but  judges  or  judicial  officers  can  exercise,  sec.  10,  p.  29 
sometimes  provided  otliervpise  by  statute,  sec.  10,  p.  29 

authorize  holding  court  by  attorneys,  sec.  10,  p.  29 
of  subject-matter  can  not  be  conferred  by  consent,  sec.  10,  p.  29 
how  obtained,  sec.  11,  p.  30 

of  subject-matter,  not  by  consent  of  parties,  sec.  11,  p.  30 

by  filing  necessary  pleading,  sec.  11,  p.  30 

pleading  must  show  subject-matter  within  jurisdiction  of  court, 

sec.  11,  p.  30 
not  necessary  that  it  state  a  cause  of  action,  sec.  11,  p.  30 

over  subject-matter  will  be  presumed,  sec.  11,  p.  31 
plaintiffs  pleading  determines,  sec.  11,  p.  31 
special  statutorv  mode  must  be  followed  or  proceeding  void,  sec.  11, 

p.  31  " 

of  the  person,  by  service  of  process  or  appearance,  sec.  11,  p.  31 
of  the  res  by  seizure  under  process,  sec.  ll,  p.  31 
or  acts  of  equivalent  import,  sec.  11,  p.  31 
to  make  effectual  notice  to  parties  interested  must  be  given,  sec. 

11,  p.  31 

of  the  subject-matter, 
subject-matter  defined,  sec.  12,  p.  32 
what  actions  are  local,  sec.  12,  p.  32 

affecting  I'eal  estate  must  be  brought  where  same  is  situated,  sec. 

12,  p.  32 

what  complaint  must  allege  to  show  jurisdiction,  sec.  12,  p.  32 

of  what  courts  will  take  judicial  notice,  sec.  12,  p.  32 
can  not  be  given  by  consent  of  parties,  sec.  12,  p.  32 
agreed  case  may  take  place  of  pleadings,  sec.  12,  p.  33 

affidavit  that  controversy  real  and  proceeding   in  good  faith, 
necessary,  sec.  12,  p.  33 

takes  place  of  pleadings  and  process,  sec.  12,  p.  33 
for  specific  performance  where  action  must  be  brought,  sec.  12,  pp. 

33,  34 
appeal  from  court  not  having,  to  one  having,  jurisdiction,  effect  of, 

sec.  12,  p.  34 
personal  actions,  where  may  be  brought,  sec.  12,  p.  35 
divorce  cases,  where  must  be  brought,  sec.  12,  p.  36 
if  court  in  which  action   brought  has  not  jurisdiction,  appellate 
court  has  none,  sec.  12,  p.  36 
of  the  person,  sec.  13, 

may  be  conferred  by  consent  of  parties,  sec.  13,  p.  36 

or  by  failure  of  defendant  to  object,  sec.  13,  p.  36 
general  appearance,  in  person  or  by  attorney,  gives,  sec.  13,  p.  37 
what  amounts  to  appearanc,  sec.  13,  p.  37 
special  appearance  to  contest  does  not  give,  sec.  13,  p.  37 

what  will  amount  to  special  appearance,  sec.  13,  p.  37 
special  appearance  gives  in  some  states,  by  statute,  sec.  13,  p.  37 
appearance  may  be  entered  by  attorney,  sec.  13,  p.  38 

effect  of  by  unauthorized  attorney,  sec.  13,  pp.  38-41 
presumption  that  appearance  was  authorized,  sec.  13,  p.  41 


INDEX.  801 

Jurisdiction —  Continued. 

eft'ect  of  recitals  in  record,  showing  appearance,  sec.  13,  p.  41 
difiference  between  domestic  and  foreign  as  to  effect  of  sec.  13 
p.  41 
when  appearance  will  not  give,  sec.  13,  p.  41 
two  kinds  of  service,  actual  and  constructive,  sec.  13,  p.  41 
difference  between,  sec.  13,  pp.  41,  43 
i  acknowledgment  of  service,  how  made  and  effect  of,  sec.  13  pp 

;  41,42  ^^ 

i  personal  judgment  can  be  rendered  only  on  personal  service  sec 

13,  p.  42 
complaint  can  not  be  amended  after  constructive,  sec.  13,  p.  42 
when  constructive  allowed,  sec.  13,  p.  42;  sec.  38,  p.  267 
how  service  may  be  made  on  foreign  corporations,  sec.  14,  p.  43 
personal  service  on  non-resident  within  state  sufficient,  sec.  13,  p.  43 
can  be  no  appearance  for  a  minor,  sec.  13,  p.  43 

j'  service  on  necessary,  sec.  14,  p.  43 

!;  constructive  service,  strict  compliance  with  law  necessary,  sec.  13, 

p.  43 
changed  by  statute  in  some  states,  sec.  13,  p.  44 
constructive  unknown  to  common  law,  sec.  13,  p.  44 
order  for,  how  procured  in  England,  sec.  13,  p.  44 
in  rem,  sec.  14 

difference  between  and  in  personam  as  to  means  of  acquiring,  sec. 

14,  p.  44 
personal  or  actual  notice  not  necessary,  sec.  14,  p.  44 
acquired  by  seizure  or  levy  on  property,  sec.  14,  p.  44 
or  arises  from  some  contract  giving  lien  on  property,  sec.  14,  p.  44 
notice  necessary  to  make  effectual,  sec.  14,  p.  45 
notice  sometimes  sufficient  without  seizure,  sec.  14,  p.  45 
failure  to  give  notice  does  not  take  away,  sec.  14,  p.  45 

exception,  sec.  14,  p.  45 
rule  in  attachment  as  to  necessity  of  seizure,  sec.  14,  pp.  45,  46 
when  seizure  of  property  not  necessary,  sec.  14,  p.  46 
when  attachment  proceedings  are  in  rem,  sec.  14,  p.  47 
necessary  that  court  retain  custody  of  property,  sec.  14,  p.  47 

but  may  be  released  on  bond.  sec.  14,  p.  47 
property  must  be  within  jurisdiction  of  court,  in  attachment,  sec. 

14,  p.  47 
non-resident  sei'ved  in  state  gives,  of  person,  sec.  14,  pp.  47,  48 
seizure  of  property  and  notice  both  necessary,  sec.  14,  p.  48 
extent  of,  where  no  personal  service,  sec.  14,  p.  48 
complaint  amended,  new  notice  necessary,  sec.  14,  p.  49 
to  whom  and  how  notice  must  be  given,  sec.  14,  pp.  49,  50 
when  constructive  notice  allowed,  sec.  14,  p.  50;  sec.  38 
personal  service  out  of  state  is  constructive,  sec.  14,  p.  50 
provisional  remedies  to  reach  property  unknown  to  common  law, 

sec.  14,  p.  50 
actual  appearance  of  defendant  necessary,  sec.  14,  pp.  50,  51 
changes  by  statute  in  England,  sec.  14,  p.  51 
and  in  this  country,  see.  14,  p.  51 
territorial  jurisdiction,  sec.  15, 

state  or  country  can  not  exercise  beyond  its  own  territory,  sec.  15, 

p.  51. 
same  rule  applicable  to  similar  subdivisions  of  government,  sec. 

15,  p.  52 

51 


802  INDEX. 

Jurisdiction — Continued. 

but  process  of  court  of  a  county  may,  by  statute,  be  made  to  ex- 
tend throughout  state,  sec.  15,  p.  52 
but  not  into  another  state  or  country,  sec.  15,  p.  53 
except  by  consent  of  such  other  state  or  country,  sec.  15,  p.  53 
as  to  power  to  compel  specific  performance  of  contract  to  convey 

real  estate  situate  in  another  state,  sec.  15,  p.  53 
of  lands  situate  partly  in  different  counties,  sec.  15,  p.  54 
where  lands  are  situate  partly  in  different  states,  sec.  15,  p.  55 
where  action  must  be  brought  in  federal  courts,  sec.  15,  p.  56 
as  to  the  place  of  residence  or  citizenship  of  corporations,  sec.  15, 

pp.  56,  57 
receiver  can  not  be  appointed  over  property  not  within  jurisdiction 

of  court,  sec.  15,  p.  57 
receiver  can  not  pursue  remedies  in  another  state  except  by  com- 
ity, sec.  15,  p.  57 
as  to  his  right  to  sue  in  another  state,  sec.  15,  pp.  57,  58 
property  once  in  possession  of  receiver  within  jurisdiction  may 
follow  into  another  state,  sec.  15,  p.  58 
as  to  amount,  sec.  16, 

limitations  of,  as  to  amount,  and  effects,  sec.  16,  p.  59 

legislature  can  not  increase  where  constitution  limits,  sec.  16,  p.  59 

what  controls  in  determining  amount  in  controversy,  sec.  16,  p.  59, 

60,  62,  63 
what  constitutes  matters  in  controversy,  sec.  16,  p.  61 
effect  of  rendition  of  verdict  or  judgment  for  less  than  jurisdic- 
tional amount,  sec.  16,  p.  61 
remittitur  of  part  to  give  jurisdiction  effect  of,  sec.  16,  p.  61 
running  account  can  not  be  divided  to  give,  sec.  16,  p.  62 
federal  courts,  amount  jurisdictional  and  must  be  averred  in  com- 
plaint, sec.  16,  p.  62 
defense  reducing  amount  does  not  affect,  sec.  16,  p.  63 
counterclaim  or  set-off  does  not  affect,  sec.  16,  p.  63 
receiver  of  national  bank  may  sue  in  federal  court  irrespective  of 

amount,  sec.  16,  p.  63 
limitation  does  not  apply  where  United  States  a  party,  sec.  16,  p.  64 
what  considered  in  determining  amount  as  to  appellate  jurisdic- 
tion, sec.  16,  pp.  64-67 
general  rules  as  to  manner  of  determining  amount  in  controversy, 
sec.  16,  pp.  67,  68 
exclusive  and  concurrent,  sees.  9,  17, 
defined,  sec.  9 

exclusive,  given  to  one  court,  no  other  can  exercise,  sec.  17,  p.  68 
if  exclusive,  given  by  constitution,  legislature  can  not  confer  on 
another,  sec.  17,  p.  68 
can  not  be  taken  away,  but  may  be  enlarged,  sec.  17,  p.  68 
courts  having  concurrent,  first  assuming  takes  exclusive,  sec.  17, 

p.  68 
courts  of  concurrent,  will  not  restrain  proceedings  commenced  in 

another,  sec.  17,  p.  69 
rule  extends  to  process  of  courts  mesne  and  final,  sec.  17,  p.  69 
effect  of  rule  on  officer  acting  under  process,  sec.  17,  pp.  69,  70,  71 
effect  of  inability  of  court  to  carry  cause  to  conclusion,  sec.  17,  pp. 

71,  72 
when  court  of  equity  may  aid  court  of  law,  sec.  17,  p.  72 
actions  in  rem,  court  seizing  property  has  exclusive,  sec.  17,  p.  72 
new  remedy  provided,  in  what  court  must  be  pursued,  sec  17,  p.  72 


II 


INDEX.  803 

Jurisdiction — Continued. 

admiralty  exclusive  in  federal  courts,  sec.  17,  p.  73 

not  confined  to  tide  waters,  sec.  17,  p.  73 
transfers  from  state  to  federal  courts,  eflFect  of,  sec.  17,  p.  73 
concurrent  in  state  and  federal  courts  in  case  of  crimes,  when,  sec. 
17,  p.  74 
assistant  jurisdiction,  sec.  18 

what  is  and  by  what  courts  exercised,  sec.  18,  p.  74 

difference  between,  and  concurrent,  sec.  18,  p.  74 

superseded  by  statutory  proceedings  and  code  provisions,  «;ec.  IS, 

pp.  74,  75 
statutory  modes  of  compelling  production  of  documents  and  per- 
petuation of  testimony,  sec.  18,  p.  75 
and  of  discovery,  sec.  18,  p.  75 
and  proceedings  supplementary,  sec.  18,  p.  75 
will  not  be  exercised  when  law  court  competent  to  grant  relief, 

sec.  18,  p.  76 
diflFerence  in  decided  cases  as  to  eflFect  of  providing  statutory  rem- 
edy, sec.  18,  pp.  78,  79 
what  must  be  shown  in  bill  as  to  other  remedy,  sec.  18,  p.  80 
statutory  remedies  controlled  by  equity  principles,  sec.  18,  p.  80 
terms  of  court  as  affecting,  sec.  19  (see  Terms  of  Court) 

proceedings  at  time  or  place  other  that  fixed  by  law  void,  sec.  19, 

p.  81 
stipulation  can  not  render  valid,  sec.  19,  p.  81 
otherwise  as  to  acts  of  judge,  sec.  19,  p.  81 
vacation,  what  is,  sec.  19,  p.  81 
special  terms,  notice  of,  necessary,  sec.  19,  p.  82 
presumptions  that  court  was  legally  in  session,  sec.  19,  p.  82 
powers  of  courts  on  Sunday,  sec.  19,  pp.  82,  83 
power  to  continue  sittings  during  term,  sec.  19,  p.  84 
effect    of    adjournment    as   to    power  over  judgments,    sec.    19, 

p.  84 
power  in  vacation,  sec.  19,  pp.  84,  85 

premature  adjournment  by  sheriff,  eflFect  of,  sec.  19,  p.  84 
consent  to  hearing  at  special  term,  when  necessary,  sec.  19,  p.  85 
trial  commenced,  when  court  may  be  continued  beyond  term  to 

complete,  sec.  19,  pp.  85,  86 
term  can  not  be  abridged  by  adjournment,  sec.  19,  p.  86 
judgment  rendered  during  term  may  be  entered  in  vacation,  sec. 

19,  p.  86 
but  not  when  required  to  be  read  and  signed  in  open  court,  sec. 

19,  p.  86 
what  necessary  to  constitute  legal  term,  sec.  19,  p.  87 
term  opened,  presence  of  judge  necessary,  sec.  19,  p.  87 
calling  judge  as  witness,  effect  of,  sec.  19,  p.  87 
special  and  inferior,  sec.  20 

courts  of,  act  by  virtue  of  and  controlled  by  statute,  sec.  20,  p.  88 

provisions  of  statute  must  be  followed,  sec.  2U,  p.  88 

proceedings  must  show  jurisdiction  on  their  face,  sec.  20,  p.  88 

what  sufficient  showing,  sec.  20,  p.  88 

what  steps  are  jurisdictional,  sec.  20,  p.  89 

can  not  be  supplied  by  consent  or  waiver,  when,  sec.  20,  pp.  89, 

90,  94 
when  acquired,  must  be  exercised  as  required  by  statute,  sec.  20, 
p.  93 


804  INDEX. 

J  urisdiction —  Continued 

discretion  of  courts  of,  can  not  be  controlled,  sec  20,  p   93 
power  to  set  aside  judgments  not  incident  to,  sec  20,  p.  93 

can  only  be  done  in  manner  provided  by  statute,  sec.  20,  p.  94 
court  of  general,  when  exercises  special,  sec.  20  p.  94  , 

summary,  statute  must  be  followed  strictly,  sec.  20,  p.  94 

not  summary,  substantial  comjiliance  sufficient,  sec.  20,  p.  94 
special  mode  of  acquiring  jurisdiction  of  person  of  non-resident, 

what  necessary,  sec.  20,  p.  95 
recitals  in  records,  effect  ot,  sec.  20,  p.  96 
original  and  appellate,  sec.  21 

defined  and  distinguished,  sec.  21,  p.  97 

usually  appellate  extends  only  to  final  judgments,  sec.  21,  p.  98 

but  is  statutory  right,  and  may  be  extended,  sec.  21,  pp.  98,  99 
diflFerence  between  and  w-rits  of  error,  sec.  21,  p.  98 
court  may  be  vested  with  both,  sec.  21,  p.  98 
appellate  court  possessed  of  inherent  and  incidental  powers,  sec. 

21,  p.  98 
on  appeal  cases  usually  tried  by  the  record,  sec.  21,  p.  99 
steps  necessary  must  be  taken  within  time  prescribed,  sec.  21,  pp. 
99,  100 

upon  failure,  second  appeal  may  be  taken,  when,  sec.  21,  p.  100 
record  of  lower  court  conclusive,  sec.  21,  p.  100 
no  actual  controversy,  court  not  bound  to  act,  sec.  21,  p.  101 
assignment  of  errors  when  necessary,  and  effect  of,  sec.  21,  p.  101 
fraud  when  excuses  delay  in  taking  necessary  steps,  sec.  21,  p.  101 
amendment  of  complaint  on  appeal  for  trial  de  novo,  effect  of,  sec. 
21,  p.  102 
when  and  how  question  of  may  be  raised,  sec.  22 
depends  on  character  of  court,  sec.  22,  p.  103 

and  whether  jurisdiction  of  subject-matter  or  person  assailed, 
sec.  22,  p.  103 
failure  to  object  when  a  waiver,  and  when  not,  sec.  23,  pp.  103, 

115, 118 
appearance  and  failure  to  appear,  effect  of,  sec.  22,  pp.  103,  104 
right  to  raise  by  demurrer,  when,  sec.  22,  pp.  107-109,  116 
when  by  plea,  or  by  answer,  sec.  22,  pp.  108,  109 
appeal  when  a  waiver,  sec.  22,  p.  110 

when  raised  by  motion  to  vacate  judgment,  sec.  22,  p.  Ill 
by  action  to  set  aside  judgment,  sec.  22,  p.  Ill 
when  court  may  refuse  to  entertain,  sec.  22,  p.  Ill 
by  motion  for  non-suit,  sec.  22,  p.  112 

by  motion  in  arrest  of  judgment,  sec.  22,  p.  112 
in  superior  court  without  appeal,  how,  sec.  22,  p.  112 

by  certiorari,  sec.  22,  p.  112 

by  prohibition,  sec.  22,  p.  112 

by  habeas  corpus,  sec.  22,  p.  112. 
on  appeal,  how,  sec.  22,  p.  112 

by  motion  to  dismiss,  sec.  22,  p.  112 

or  by  assignment  of  error,  sec.  22,  p.  112 
when  must  first  be  made  in  court  below,  sec.  22,  p.  113 
by  assignment  of  error  or  demurrer,  want  of,  must  appear  affirma- 
tively, when,  sec.  22,  p.  113 

rule  in  federal  courts,  sec.  22,  pp.  113,  114 
when  by  injunction,  sec.  22,  pp.  114,  115 

power  to  vacate  judgment  when  limited  to  term,  sec.  22,  p.  115 
action  brought  in  wrong  county,  how  objection  waived,  sec.  22,  pp. 
115,  116 


INDEX.  805 

Jurisdiction — Continued. 

oflBcers  return,  effect  of,  sec.  22,  pp.  116,  117 

service  obtained  by  fraud,  court  will  not  act,  sec.  22,  p.  117 

where  question  of,  as  to  subject-matter,  may  arise,  sec.  22,  p.  118 

when  objection  may  be  made.  sec.  22,  p.  118 
how  may  be  questioned  collaterally,  sec.  22,  pp.  118-120 
what  constitutes  collateral  attack,  sec.  22,  pp.  119,  120 
when  will  be  presumed,  sec   22,  p.  120 
who  may  contest,  sec.  22,  p.  120 

judgment  void  on  face,  court  may  set  aside,  pec.  22,  p.  121 
appearance  of  attorney,  effect  of,  sec.  22,  p.  121 
how  proved  and  disproved,  sec.  23 

how  and  in  what  court  question  may  arise,  sec.  23,  p.  122 

proof  necessary  depends  upon  character  of  court,  sec.  23,  p.  122 

when  presumption  alone  establishes,  sec.  23,  pp.  123,  124 

when  law  and  pleadings  will  show,  sec.  23,  p.  123 

difference  between  domestic  and  foreign  judgment  as  to  weight  of 

presumption,  sec.  23,  pp.  123,  124,  125 
when  law  of  foreign  state  must  be  proved,  sec.  23,  pp.  123,  124 
when  certain  steps  necessary  to  give  must  be  proved,  sec.  23,  p. 
124 
presumption  when  sufficient  proof,  sec.  23,  p.  124 
of  what  laws  of  other  states,  courts  will  take  judicial  notice,  sec. 

23,  p.  125 
difference  between  manner  of  alleging  and  proving,  sec.  23,  p.  125 
of  the  person,  how  proved,  sec.  23,  p.  125 
of  inferior  courts,  must  be  by  the  record,  sec.  23,  pp.  125,  126 
recital  in  record  controlled  by  officer's  return,  sec.  23,  pp.  126-143 
finding  of  court  conclusive,  when,  sec.  23,  pp.  126-143 

as  to  matters  necessary  to  be  alleged  in  petition,  effect  of  find- 
ing, sec.  23,  p.  126 
difference  between  finding  of  fact  and  decision  that  court  has  juris- 
diction, sec.  23,  pp.  126-143 
effect  of  provision  of  federal  constitution,  full  faith  and  credit 

must  be  given  to  records  of  other  states,  sec.  23,  p.  127 
conflict  in  the  decisions,  sec.  23,  p.  143 

general  propositions  affecting  questions,  established  by  the  au- 
thorities, sec.  23,  pp.  144,  145 
how  lost,  taken  away,  or  suspended,  sec.  24 

vested  by  constitution  can  not  be  taken  away  by  statute,  sec.  24, 

pp.  146,  147 
inherent  powers  can  not  be  taken  away,  sec.  24,  p.  146 
can  not  be  by  agreement  of  parties,  sec.  24,  p.  146 
how  taken  away  by  statute,  sec.  24,  pp.  146,  147 
repeal  of  statute,  effect  of,  sec.  24,  p.  147 
by  failure  of  court  to  act  in  time,  sec.  24,  pp.  148-150 
by  appeal  or  writ  of  error,  sec.  24,  p.  150 
by  change  of  venue,  sec.  24,  pp.  151-153 
by  removal  of  causes,  sec.  24,  p.   153 

by  raising  issue  not  within  jurisdiction  of  court,  sec.  24,  p.  153 
in  actions  in  rem,  by  losing  custody  of  property  or  failing  to  give 

notice,  sec.  24,  p.  154 
suspended  between  terms  of  court  and  when  judges  not  present, 

sec.  24,  p.  154 
by  exhausting  jurisdiction,  sec.  24,  p.  155 

presumptions  in  favor  of  jurisdiction,  sec.  25 

general  rule  as  to  what  will  and  what  will   not  be  presumed,  sec. 
25,  pp.  155,  167,  168 


806  INDEX. 

Jnrisdiction —  Continued. 

difference  between  courts  of  general  and  of  special  jurisdiction, 

sec.  25,  pp.  155-162 
diflference  between  domestic  and  foreign  courts  as  to,  sec.  25,  pp. 
162,  163,  165 
rule  as  to  federal  courts,  sec.  25,  p.  162 
recitals  in  record,  effect  of,  sec.  25,  pp.  163,  165 
presumption  as  to  extent  of  jurisdiction  once  acquired,  sec.  25,  pp. 
166,  167 

effect  of,  want  of,  sec.  26 

general  rule,  sec.  26,  p.  168 

when  judgment  shows  on  its  face,  effect,  sec.  26,  p.  168 

difference  between  domestic  and  foreign  judgments,  sec.  26,  p.  169 
and  between  courts  of  general  and  of  special  jurisdiction,  sec. 
26,  pp.  168,  169 
inherent  powers  of  courts,  sec.  27 

enumerated,  sec.  27,  p.  170 

sometimes  called  incidental  powers,  sec.  27,  p.  171 
and  divided  into /orma^  and  summary,  sec.  27,  p.  171 

can  not  be  taken  away,  sec.  27,  pp.  173,  174 

but  may  be  limited  and  regulated,  sec.  27,  p.  174 

tendency  of  legislation  to  limit,  sec.  27,  p.  174 

right  to  limit  in  contempt  proceedings,  sec.  27,  p.  174 

purposes  of  exercise  in  contempts,  sec.  27,  p.  175 

power  of  superior  court  to  review  in  cases  of,  sec.  27,  p.  175 
by  habeas  corpus,  sec.  27,  p.  176 

two  kinds  of  contempt,  direct  and  constructive,  sec.  27,  p.  177 

difference  between  as  to  power  of  courts  to  punish,  sec.  27,  p.  177 

with  respect  to  rules  of  court,  sec.  27,  pp.  177-180 

to  grant  new  trials,  sec.  27,  p.  180 

of  inferior  courts,  to  punish  for  contempt,  sec.  27,  p.  181    * 

to  amend  records,  sec.  27,  p.  181 
powers  of  illegal  and  de  facto  courts,  sec.  28 

acts  of  illegal  courts  void,  sec.  28,  pp.  181,  182 

of  de  facia  iudge  or  court  valid,  sec.  28,  pp.  181,  182;  sec.  33,  p.  223 

what  constitutes  rfe/ac<o  judge,  sec.  28,  p.  182 
constitutional  limitations  of,  sec.  29 

division  of  departments  of  government,  sec.  29,  p.  183 

one  can  not  perform  duties  of  another,  sec.  29,  p.  183 

if  they  do  their  acts  void,  sec.  29,  p.   183 

judicial  department  may  enforce  ministerial  duties,  sec.  29,  p.  183 

but  not  acts  calling  for  exercise  of  judgment  and  discretion,  sec. 
29,  p.  183 

may  prevent  violation  of  ministerial  duty,  sec.  29,  pp.  183,  184 

extent  of  power  of  court  over  officers  of  other  departments,  sec. 
29,  p.  184 

ministerial,  executive,  judicial  and  legislative  duties  defined,  sec. 
29,  pp.  185-187 

make.5  no  difference  by  whom  act  performed,  sec.  29,  p.  187 

depends  upon  nature  of  the  act,  sec.  29,  p.  187 

how  far  may  regulate  or  control  legislative  department,  sec.  29,  pp. 
188,  191 

construction  of  law  by  legislature,  effect  of,  sec.  29,  p.  191 

courts  determine  constitutional  limits  of  power  of  several  depart- 
ments, sec.  29,  p.  191 

judicial  not  bound  by  construction  of  laws  by  other  departments, 
sec.  29,  p.  193 


INDEX.  807 

Jurisdiction —  Continued. 

wisdom  of  law  for  legislative  department  alone  to  determine,  sec. 

29,  p.  193 
power  to  appoint  to  office  is  executive,  sec.  29,  p.  193 

but  other  departments  may  appoint  their  own  officers,  sec.  29 
pp.  193,  194 
ministerial  or  legislative  duties  can  not  be  imposed  upon  judicial 
officers,  sec.  29,  p.  194 
nor  judicial  functions  on  other  officers,  sec.  29,  p.  194 
constitutionality  of  a  law  is  judicial  question,  sec.  29,  p.  195 
in  summary  proceedings,  sec.  30 
regulated  by  statute,  sec.  30,  p.  197 

are  special,  and  statute  must  be  strictly  followed,  sec.  30,  p.  198 
control  of  attorneys,  sec.  31 

attorneys  are  officers  of  court,  sec.  31,  p.  198 

courts  have  inherent  power  to  punish  for  contempt,  sec.   31,  pp. 

198,  199 
extends  to  suspension  and  disbarment,  when,  sec.  31,  p.   198 
legislature  may  regulate  power,  sec.  31,  p.  198 
for  what  causes  attorneys  may  be  disbarred,  sec.  31,  pp.  199,  200 
pardon  for  oflFense  does  not  affect  power  to  disbar,  sec.  31,  p.  201 
offense  committed  before  federal  court,  slate  court  may  disbar,  sec. 
31,  p.  201 
means  of  acquiring  jurisdiction  generally,  sec.  32 

notice  in  some  form  necessary,  sec.  32,  p.  202;  sec.  33,  p.  211 
pleading  amended,  new  notice  necessary,  when,  sec.  32,  p.  202 
manner  of  giving  notice  regulated  by  statute,  sec.  32,  p.  202 
personal  notice,  when  necessary,  sec.  32,  p.  203;  sec.  33,  pp.  213, 

214 
when  constructive  notice  allowed,  sec.  32,  pp.  203,  204 
what  must  be  shown  to  authorize  constructive,  sec.  32,  p.  203 
notice  other  than  process  of  court,  when  allowed,  sec.  32,  pp.  204, 

205 
notice  may  be  waived,  sec.  32,  pp.  205,  206 
due  process  of  law,  sec.  33 
constitution  of  United  States  requires,  sec.  33,  p.  206 
inhibition  applies  to  states  and  state  courts,  sec.  33,  p.  206 
not  confined  to  judicial  proceedings,  sec.  33,  p.  206 
apply  to  laws  enacted  by  congress,  sec.  33,  p.  207 
due  process  of  law  can  not  be  defined,  sec.  33,  p.  207 

meaning  of,  sec.  33,  pp.  208,  212,  213 
liberty,  meaning  of,  sec.  33,  p.  209 
constitution  requires: 
notice  to  party, 
opportunity  to  be  heard, 

that  hearing  be  before  court  or  other  lawful  tribunal, 
that  hearing  be  according  to  law  and  established  principles,  sec. 
33,  p.  211 
proceeding  in  court  not  always  necessary;  sec.  33,  pp.  212,  213 
eminent  domain,  personal  notice  not  necessary,  sec.  33,  p.  213 
decision    according  to   discretion,  without   evidence,    notice   not 

necessary,  sec.  33,  p.  213 
states  may  provide  kind  of  notice  necessary,  sec.  33,  p.  213 
general  notice  to  all  persons,  when  sufficient,  sec.  33,  pp.  214,  "221 
personal  service,  when  necessary,  sec.  33,  pp.  213-218 
when  constructive  notice  sufficient,  sec.  33,  p.  219 
special  appearance,  effect  of,  sec.  33,  p.  219 
legislature  can  not  authorize  injunction,  when,  sec.  33,  pp.  219,  220 


808  INDEX. 

Jurisdiction — Continued. 

may  provide  what  amount  of  damages  may  be  recovered,  when, 

sec.  33,  p.  220 
notice  not  always  necessary  before  action,  sec.  33,  p.  220 
but  action  without  notice  can  not  be  made  conclusive,  sec.  33,  p.  220 
police  powers  of  states,  how  far  may  be  exercised,  sec.  33,  p.  221 
denial  of  jury  trial,  when  denial  of  due  process  of  law,  sec.  33,  pp. 

222-224 
legislature  can  not  deny  right  to  resort  to  courts,  sec.  33,  p.  222 
commitment  of  court  not  having  jurisdiction,  eflfect  of,  sec.  33,  p. 

223 
act  of  de  facto  court  not  void,  sec.  33,  p.  223 
indictment,  or  presentment  by  grand  jury,  not  esseutial,  when, 

sec.  33,  p.  223 
trial  after  acquittal,  effect  of,  sec.  33,  p.  224 
how  far  statutes  may  lawfully  deprive  citizens  of  their  rights,  sec. 

33,  p.  224 
appearance  and  its  effects,  sec.  34 
what  is  an  appearance,  sec.  34,  p.  225 
different  kinds  of,  sec.  34,  p.  225 

general,  what  is,  and  its  effect,  sec.  34,  pp.  225,  227-229,  231,  233 
must  be  done  in  court,  sec.  34,  p.  225 
appearance  for  removal  of  cause  to  federal  court,  effect  of,  sec.  34, 

pp.  226,  227 
special  appearance  and  its  effects,  sec.  34,  pp.  227,  228,  231,  234 
withdrawal  of  pleading  does  not  withdraw  appearance,  sec.  34,  p.  227 
difference  between  illegal  service  and  want  of  service,  as  to  effect 

of  appearance,  sec.  34,  p.  229 
appeal,  effect  of  as  appearance,  sec,  34,  pp,  229-231 
answer,  when  not  a  general  appearance,  sec.  34,  p.  232 
want  of  jurisdiction  of  subject-matter  can  not  be  waived,  sec.  34, 

p.  232 
special  appearance  gives  jurisdiction  in  some  states,  sec.  34,  p.  232 
and  applies  to  non-resident  served  out  of  state,  sec.  34,  p.  232 
but  doctrine  exceptional,  sec.  34,  p.  232 
effect  of  code  provisions  as  to  effect  of  appearance,  sec.  34,  pp.  232, 

233 
withdrawal  of  attorney  withdraws  pleadings,  sec.  34,  p.  233 
effect  of  unauthorized  appearance,  sec.  34,  p.  233 
effect  of  appearance   in  main  action  upon   auxiliary  jiroceeding, 

sec.  34,  pp.  233,  234 
appearance  can  not  be  entered  for  minor  without  service  of  pro- 
cess, sec.  34,  p.  234 
nature  and  different  kinds  of  process,  sec.  35 

original,  difference  between  at  common  law  and  under  codes,  sec. 

35,  p.  234;    sec.  36,  p.  239 
defined,  sec.  35,  p.  234 

at  common  law  action  commenced  by  original  writ,  sec.  35,  p.  234 
original  writ  defined,  sec.  35,  p.  234 

was  the  foundation  of  the  suit,  sec.  35,  p.  235 

was  followed    by  summons,  attachment,  and   distringas,   to  compel 
obedience,  sec.  35,  p.  235 
in  equity  first  process  a  subpena,  sec.  35,  p.  235 
subpena  defined,  sec.  35,  p.  235 

other  writs  issued  to  compel  appearance,  sec.  35,  p.  235 
objects  of  common  law  and  equity  writs  to  corHjoeZ  appearance,  sec. 

35,  p.  236 
common-law  writs  proceeded  against  property,  sec.  35,  p.  236 


INDEX.  809 

Jurisdiction — Continued. 

equity  writs  operated  upon  the  person,  sec.  35,  p.  236 

but  property  sequestered  by  court  of  equity,  when,  sec.  35,  p. 
236 
under  civil  and  ecclesiastical  law  personal  citation  issued,  sec.  35, 
p.  236 
called  monition  and  adopted  by  admirality  courts,  sec.  35,  p.  236 
process  under  present  practice  not  to  compel  attendance  but  to  give 
opportunity  to  attend,  sec.  35,  p.  236 
penalty  for  failure  to  attend  is  judgment  by  default,  sec.  35,  p. 
236 
common  law  and  equity  writs  to  compel  appearance  obsolete,  sec. 

35,  p.  236 
superseded  by  writ  of  summons,  sec.  35,  p.  236 
summons  delined,  sec.  35,  pp.  236,  237 

in  some  of  the  states  is  a  mere  notice  not  issuing  out  of  court, 
sec.  35,  p.  237 
but  its  object  is  the  same,  sec.  35,  p.  237 
sometimes  denominated  a  citation,  or  notice,  sec.  35,  p.  237 
subpena  still  in  use  in  federal  and  some  state  courts,  sec.  35,  p.  237 

but  sometimes  modified  in  form,  sec.  35,  p.  238 
in  many  proceedings,  as  in  matters  of  probate,  notice  provided  for 

sec.  35,  p.  238 
in  federal  courts  monition  of  the  civil  law  still  in  use,  sec.  35,  p.  238 
may  be  general  to  all  persons,  or  special  to  individuals  named, 
or  mixed,  containing  special  directions  to  all  persons  and 
special  summons  to  particular  persons,  sec.  35,  p.  238 
citation  defined,  sec.  35,  p.  238 

does  not  differ  materially  from  summons,  sec.  35,  p.  238 
all  original  process  in  the  several  states  essentially  the  same,  sec.  35, 

p.  238 
changes  made  in  original  process  in  England,  sec.  35,  p.  238 
provision  usually  made  for  publication  when  personal  service  can 

not  be  had,  sec.  35,  p.  239 
notice  required  in  appellate  courts,  sec.  35,  p.  239 
requisites  of  process,  sec.  36 

importance  ot  form  under  common  law  practice,  sec.  36,  p.  239 

at  present  day  is  of  little  consequence,  sec.  36,  p.  239 

objects  of,  sec.  36,  p.  239 

general  requisites  of,  sec.  36,  pp.  239,  240 

must  conform  substantially  to  requirements  of  statute,  sec.  36,  p. 
240 

defective,  when  sufficient  to  give  jurisdiction,  sec.  36,  p.  240 

certainty  required  in,  sec.  36,  p.  241 

name  of  person  to  be  summoned  must  appear  in,  sec.  36,  p.  241 

variance  in  name  when  will  not  vitiate,  sec.  36,  p.  241 

to  whom  must  be  directed,  sec  36,  p.  241 

authorized  to  issue  to  certain   oflficer,  if  another  officer  disquali- 
fied, disqualification  must  exist,  sec.  36,  p.  241 

when  form  of  depends  upon  nature  of  action,  sec.  36,  p.  242 

eflfect  of  variance  between  summons  and  complaint,  sec.   36,  pp. 
242,  243 
which  controls,  complaint  or  summons,  sec.  36,  p.  242 
when  variance  will  be  presumed  to  have  worked  injury,  .sec.  36, 
p.  242 

when  statute  fixing  form  held  to  be  mandatory,  and   summons 
fatally  defective,  sec.  36,  p.  243 


810  INDEX. 

Jurisdiction — Continued. 

distinction  between  cases  where  clerk  enters  default  and  where 
relief  is  asked  of  court,  as  to  eflfect  of  variance,  sec.   36,  pp. 
243,  244 
literal  compliance  with  statute  not  necessary,  sec.  36,  p.  244 
general  statement  of  cause  of  action  sufficient,  sec.  36,  p.  245 
clerk  of  one  court  can  not  issue  returnable  in  another  court  unless 

expressly  authorized,  sec.  36,  p.  245 
signature  of  clerk  necessary,  sec.  36,  p.  245 

except  when  authorized  to  be  signed  by  plaintiff  or  his  attorneys, 
sec.  36,  p.  245 
printed  signature  sufficient,  sec.  36,  p.  245 
how  must  be  tested,  sec.  36,  p.  245 

teste  matter  of  form  and  may  be  amended,  sec.  36,  p.  246 
must  bear  seal  of  court,  sec.  36,  p.  245 

but  may  be  amended  by  attaching  seal,  sec.  36,  pp.  245,  246 
even  after  judgment,  sec.  36,  p.  246 
such  summons  defective,  but  not  void,  sec.  36,  p.  246 
but  as  to  this  the  authorities  are  conflicting,  sec.  36,  pp.  246,  247 
failure  to  comply  with  requirement  that  shall  run  in  name  of  state, 

renders  irregular,  but  not  void,  sec.  36,  p.  247 
issuance  of,  is  ministerial  act,  sec.  36,  p.  247 

and  clerk  may  issue  in  action  in  his  own  behalf,  sec.  36,  pp.  247, 
248 
but  can  it  be  issued  to  sheriflF  or  other  officer  in   his  own  action  ? 

sec.  36,  p.  248 
effect  of  service  by  one  officer  of  writ  directed  to  another,  sec.  36, 

p.  248 
notice  must  be  authorized  by  law,  or  is  no  notice,  sec.  36,  p.  248 
summons  issued  on  Sunday,  when  will  be  upheld,  sec.  36,  p.  249 
when  summons  may  issue,  sec.  36,  p.  249 
generally  after  complaint  filed,  sec.  36,  p.  249 
and  if  issued  before,  is  void,  sec.  36,  p.  "249 
different  rule  in  some  states,  sec.  36,  p.  249 
alias  summons,  when  may  issue,  sec.  36,  p.  249 
return  day,  what  is,  sec.  36,  p.  249 
time  when  made  returnable  affects  validity,  when,  sec.  36,  pp.  249, 

250 
must  be  returnable  on  day  required  by  statute,  sec.  36,  p.  250 
made  returnable  on  legal  holiday,  not  void,  sec.  36,  p.  250 
but  will  be  returnable  first  judicial  day  thereafter,  sec.  36,  p.  250 
made  returnable  for  wrong  hour  in  the  day,  effect  of,  sec.  36,  p.  250 
failure  to  indorse  name  of  attorney  for  plaintiff  on,  effect  of,  sec. 

36,  pp.  250,  251 
when  summons  aided  by  complaint  attached,  sec.  36,  p.  251 
service  of  process,  sec.  37 
governed  by  statute,  sec.  37,  p.  251 

statutes  of  different  states  substantially  the  same  as  to  material 
matters,  sec.  37,  p.  251 
but  differ  as  to  matters  of  form,  sec.  37,  p.  251 
purpose  and  object  of  such  statutes,  sec.  37,  p.  251 
due  service  necessary  to  give  jurisdiction,  sec.  37,  p.  252 
by  whom  may  be  made,  sec.  37,  p.  252 
generally  by  officers  designated  by  statute,  sec.  37,  p.  252 

but  may  be  by  private  individuals  when  authorized  by  law,  sec. 

37,  252 
when  by  special  deputies,  sec.  37,  p.  252 


INDEX.  811 

Jarisdiction — Continued. 

distinction  between  general  and  special  deputies  as  to  power  to 

serve,  sec.  37,  p.  253 
power  of  special,  limited  to  county  covered  by  appointment,  sec. 

37,  p.  253 
so  when  limited  to  service  of  particular  writ,  sec.  37,  p.  253 
but  service  not  void  where  could  serve  as  private  individual,  sec. 
37,  p.  253 
but  proof  of  such  service  must  be  by  affidavit  and  not  by  return, 
sec.  37,  p.  253 
appointment  of  special  bailiff  without  seal,  effect  of,  sec.  37,  p.  254 
failure  to  indorse  appointment  on  writ,  eflfect  of,  sec.  37,  p.  254 
power  of  constable  to  appoint  deputy,  and  powers  of,  sec.  37,  p.  254 
sheriff  can  not  serve  out  of  his  county,  sec.  37,  p.  254 

nor  can  private  individual,  sec.  37,  p.  254 
direction  of  writ  to  wrong  officer,  effect  of,  sec.  37,  pp.  254,  255 
rule  where  proper  officer  is  claimed  to  be  disqualified,  sec.  37,  p. 
255 
effect  of  service  by  private  individual,  sec.  37,  p.  255 
general  rule  that  officer  can  not  serve  process  in  his  own  case,  sec. 
37,  p.  255 
but  held  in  some  cases  rule  not  applicable  to  summons,  sec.  37, 

p.  255 
and  this  is  the  better  rule,  sec.  37,  p.  255 

only  objection  to  such  service  is  liability  to  false  return,  sec.  37, 
p.  256 
where  statute  provides  for  service  by  disinterested  person,  service 

by  interested  party  void,  sec.  37,  p.  256 
conditional  authority  of   court  to  appoint  private   individual  to 
serve,  conditions  must  exist  or  service  void,  sec.  37,  p.  256 
but  will  be  presumed  if  not  required  to  be  affirmatively  stated 

in  writ,  sec.  37,  p.  256 
otherwise  if  required  to  be  stated,  sec.  37,  p.  256 
if  reasons  for  appointment  not  set  out,  when  required,  can  not  be 

amended  after  service,  sec.  37,  p.  256 
must  appear  that  private  individuals  have  statutory  qualifications, 

sec.  37,  p.  256 
indorsement  on  original,  authorizing  party  to  serve,  does  not  au- 
thorize service  of  alias,  .sec.  37,  p.  257 
when  may  be  served,  sec.  37,  p.  257 
generally  not  before  filing  of  complaint,  sec.  37,  p.  257 
nor  after  return  day,  sec.  37,  p.  257 
alias  must  issue  in  such  case,  sec.  37,  p.  257 
held  may  be  dated,  issued,  and  returned  on  return  day,  sec.  37,  p. 

257 
service  on  return  day  voidable,  not  void,  sec.  37,  p.  257 
where  may  he  served,  sec.  37,  p.  257 
not  beyond  territorial  jurisdiction  of  court  issuing,  sec.  37,  p.  257 
unless  expre.ssly  authorized,  sec.  37,  pp.  257,  258 
but  service  out  of  jurisdiction  may  be  authorized  by  statute,  sec. 
37,  p.  258 
service  out  of  county  usually  provided  for,  sec.  37,  p.  258 

and  sometimes  out  of  state,  sec.  37,  p.  258 
non-resident  temporarily  within  state  may  be  served,  sec.  37,  p.  258 
exception  where  in  attendance  at  court  as  party  or  witness  or 

going  or  coming,  sec.  37,  p.  258 
must  have  reasonable  time  to  return  to  his  state,  sec.  37,  p.  258 


812  INDEX. 

Jurisdiction —  Continued. 

some  cases  hold  exemption  only  applies  to  attendance  under 
writ  involving  arrest,  sec.  37,  p.  259 
but  weight  of  authority  the  other  way,  sec.  37,  p.  259 
extends  to  person  attending  before  officer  to  give   deposition, 
sec.  37,  p.  259 
but  not  where  deposition  to  be  used  in  another  ptate,  sec.  37, 
p.  259 
immunity  does  not  depend  upon  statute,  sec.  37,  p.  1!.'j9 

nor  upon  citizenship,  sec.  37,  p.  259 
applies  to  resident  of  state  attending  out  of  his  criunty,  sec.  37, 

pp.  259,  260 
but  sometimes  held  service  on  resident  out  of  county  not  void, 

but  entitles  to  change  of  venue,  sec.  37,  p.  259 
distinction  between  resident  and  non-resident  in  case  of  arrest, 

sec.  37,  p.  259 

exception  extends  to  one  induced  to  come  within  jurisdiction 

by  fraud,  sec.  37,  pp.  260,  261 

rule  applies  to  officer  of  corporation,  sec.  37,  p.  261 

member  of  congress  privileged  while  in  attendance  at  session  and 

going  and  returning,  sec.  37,  p.  261 

deviation  from  direct  route,  effect  of,  sec.  37,  p.  261 

rule  applies  to  members  of  legislature,  sec.  37,  p.  261 

in  some  cases  confined  to  process  involving  arrest,  sec.  37,  p.  261 

but  better  rule  extends  it  to  civil  process  not  involving  arrest, 

sec.  37,  p.  261 

question  of  privilege,  how  raised,  sec.  37,  p.  261 

what  necessary  to  authorize  service  on  joint  defendant  residing 

out  of  county,  sec.  37,  p.  261 

resident  defendant  must  have  real  interest  adverse  to  plaintiff, 

sec.  37.  pp.  261,  262 

defective  service,  how  question  of,  raised,  sec.  37,  p.  262 

distinction  between  void  and  defective,  as  to  time  and  manner  of 

raising  objection,  sec.  37,  p.  262 
how  may  be  served,  sec.  37 

personal  service  generally  required,  sec.  37,  p.  262 
what  will  constitute  personal  service,  sec.  37,  p.  262 
leaving  copy  at   place  of  residence,  what  necessary,  sec.  -^>7,  pp. 
262.  263 
strict  compliance  with  statute  required,  sec.  37,  p.  262 
summons  for  wife,  leaving  copy  with  husband,  eff"ect  of,  sec.  37,  p. 

262 
generally  copy  of  complaint  must  be  served  with,  sec.  37,  p.  263 
when  required,  service  of  such  copy  necessary  to  give  jurisdic- 
tion, sec.  37,  p.  263 
where  certified  coi3y  required,  copy  not  certified  insufficient,  sec. 
37,  p.  263 
service  on  partners,  what  sufficient,  sec.  37,  p.  263 
variance  between  copy  served  and  original,  effect  of,  sec.  37,  p.  264 
service  on  minors,  what  necessary,  sec.  37,  p.  264 
on  insane  persons,  sec.  37,  p.  265 
on  married  women,  sec.  37,  p.  265 
on  persons  acting  in  official  capacity,  sec.  37,  p.  266 
constructive  service  of  process,  sec.  38 
meaning  of,  sec.  38,  p.  266 

includes  personal  service  out  of  state,  sec.  38,  p.  266 
is  exceptional  mode  of  service,  sec.  38,  p.  266 


'  INDEX.  813 

Jurisdiction — Continued. 

statutes  authorizing,  must  be  complied  with,  sec.  38,  p.  266 
division  of  the  subject,  sec.  38,  p.  266 

a.  in  what  cases  allowed,  sec.  38,  p.  267 
under  control  of  the  states,  sec.  38,  p.  267 

general  rule,  personal  action  can  not  be  maintained  on,  sec.  38, 
p.  267 
either  against  resident  or  non-resident,  sec.  38,  p.  267 
personal  judgment,  what  is,  sec.  38,  p.  268 
allowed  in  actions  in  rem,  and  attachment,  sec.  38,  p.  269 

but  relief  confined  to  property,  sec.  38,  p.  269 
seizure  of  property  generally  necessary,  sec.  38,  p.  270 

and  notice,  sec.  38,  p.  270 
allowed  in  cases  to  enforce  specific  liens  on  property  within  ju- 
diction,  sec.  38,  p.  270 
as  in  case  of  mortgage  on  real  or  personal  property,  sec.  38, 

p.  270 
proceedings  affecting  title  to  real  estate,  sec.  38,  p.  270 
to  set  aside  fraudulent  conveyances,  sec.  38,  p.  270 
actions  to  quiet  title,  sec.  38,  p.  270 
to  abate  nuisances,  sec.  38,  p.  270 
to  establish  trusts  in  real  estate,  sec.  38,  p.  270 
in  such  cases  jurisdiction  depends  upon  presence  of  property, 
sec.  38,  p.  270 
and  personal  judgment  can  not  be  rendered,  sec.  38,  p.  270 
allowed  in  cases  affecting  status  of  parties,  as  in  divorce,  sec.  38, 
p.  270 
but  can  be  no  personal  judgment  on,  as  for  alimony,  sec.  38, 
p.  270 
independent  of  statute  courts  can  not  authorize,  sec.  38,  p.  271 
courts  of  equity  when  may  authorize  service  on  other  person  for 
non-resident,  sec.  38,  p.  271 

b.  the  affidavit,  sec.  38,  p.  271 

making  of  is  jurisdictional,  sec.  38,  p.  271 

what  must  be  shown  by,  sec.  38,  pp.  271,  272 

may  be  sufficient  to  give  jurisdiction  but  defective  and  subject 

to  direct  attack,  sec.  38,  p.  272 
what  must  contain  governed  by  statute,  sec.  38,  pp.  272,  273 
but  every  step  required  may  be  taken  and  yet  service  is  void, 

when,  sec.  38,  pp.  272,  273 
how  fact  of  non-residence  may  be  established,  sec.  38,  p.  273 
facts  required  to  be  stated  in,  can  not  be  supplied  by  other  evi- 
dence, sec.  38,  p.  273 
held  not  to  be  part  of  judgment  roll,  sec.  38,  pp.  273,  274 
and  that  was  made  will  be  presumed,  sec.  38,  p.  274 
must  appear  from  that  case  is  one  for  constructive  notice,  when, 

sec,  38,  p.  274 
when  complaint  may  be  looked  to  for  cause  of  action,  sec.  38,  pp. 

274,  275 
general  statement  of  cause  of  action  sufficient,  sec.  38,  p.  275 
not  always  sufficient  to  follow  language  of  statute,  sec.  38,  p. 

275 
diligence  to  find  defendant  for  personal  service,  what  showing 

of  necessary,  sec.  38,  pp.  275,  276,  277 
facts  as  to  what  was  done  must  be  stated,  sec.  38,  p.  275 
but  any  facts  tending  to  show  gives  court  jurisdiction  to  deter- 
mine question,  sec.  38,  p.  275 


814 


INDEX. 


Jurisdiction —  Continued. 

what   constitutes   due   diligence   can    not  be  definitely   stated, 

sec.  38,  pp.  275,  276 
allegation  of"  property  within  jurisdiction,  how  must  be  made, 

sec.  38,  p.  276 
what  may  be  stated  on  information  and  belief,  sec.  38,  p.  276 
that  defendant  is  out  of  state  must  be  positive  and  direct,  sec 
38,  p.  276 
absence  from  state,  what  sufficient,  sec.  38,  pp.  276,  277 
strictness  required  in  stating  nature  of  action,  sec.  38,  p.  277 
name  of  party  to  be  published  against  necessary,  sec.  38,  p,  277 
except  where  defendant  may  be  sued  under  fictitious  name, 

sec.  38,  p.  277 
then  must  be  shown  that  true  name  is  unknown,  sec.   38,  p. 
277 
false  statement  of  cause  of  action  in,  effect  of,  sec.  38,  p.  277 

does  not  affect  jurisdiction  of  court,  sec.  38,  p.  278 
of  non-residence  must  relate  to  time  of  order  for  publication,  sec. 
38,  p.  278 
how  near  the  time  must  be  made,  sec.  38,  p.  278 
need  not  be  made  at  time  complaint  is  filed,  sec.  38,  p.  278 
in  some  states  complaint  must  be  filed  after  proof  of  publica- 
tion, sec.  38,  p.  278 
and  if  filed  before  judgment  void,  sec.  38,  p.  278 
when  affidavit  may  be  amended,  sec.  38,  p.  279 
difficulty  of  making  personal  service  no  ground  for  publication, 

sec.  38,  p.  279 
insufficiency  of  complaint  not  ground  for  attacking  notice,  sec. 
38,  p.  279 

c.  officer  s  return  as  basis  for  publication,  sec.  38,  p.  279 

facts  necessary  for  when  may  be  shown  by,  sec.  38,  p.  279 
what  must  be  shown  by,  sec.  38,  p.  279 

d.  order  of  publication,  sec.  38,  p.  280 

must  require  all  acts  to  be  done  that  statute  requires,  sec.  38,  p. 

280 
is  the  authority  for  makirg  the  service,  sec.  38,  p.  280 

and  proper  service  without  necessary  order  therefor  is  void, 
sec.  38,  p.  280 
what  order  must  contain,  sec.  38,  pp.  280,  281 

e.  the  publication,  sec.  38,  p.  281 

what  must  be,  governed  by  statute,  sec.  38,  p.  281 

in  some  states  summons  published,  sec.  38,  p.  281 

in  others  notice  containing  its  substance,  sec.  38,  p.  281 

irregularities  do  not  render  void,  sec.  38,  p.  281 

but  distinction  in  this  respect  between  personal  and  construct- 
ive service,  sec.  38,  pp.  281,  282 
publication  for  less  than  required  time,  effect  of,  sec.  38,  pp.  282, 

283 
rule  in  cases  of  petition  by  guardian  for  sale  of  ward's  property, 

sec.  38,  p.  283 
petition  said  to  give  jurisdiction  in  such  cases,  sec.  38,  p.  283 
relief  demanded  of  which  notice  is  given  limits  jurisdiction  to 

granting  such  relief,  when,  sec.  38,  p.  284 
death  of  defendant  pending  publication,  new  notice  necessary, 

sec.  38,  p.  284 
where     publication    measured    by    months    calendar    months 

meant,  sec.  38,  p.  284 


INDEX.  815 

Jurisdiction —  Continued. 

what  is  sufficient  length  of  time  for  publication,  sec.  38,  p.  284 

f.  proof  of  publication,  sec.  38,  p.  284 

validity  of  judgment  does  not  depend  upon,  sec.  38,  p.  284 

but  upon  fact  of  publication,  sec.  38,  p.  284 

therefore  may  be  supplied  after  judgment,  sec.  38,  p.  285 

and  may  be  amended,  sec.  38,  p.  285 
failure  to  make  is  irregularity  merely,  sec.  38,  p.  285 
but  judgment  void  on  face  right  to  supply  or  amend  subject  to 

intervening  rights,  sec.  38,  p.  285 
facts  of  publication  may  be  established,  how.  sec.  38,  p.  285 
by  whom  affidavit  may  be  made,  sec.  38,  p.  285 
warning  order  takes  place  of  summons,  and  proof  the  place  of 

officer's  return,  sec.  38,  p.  286 
facts  appearing  in,  by  way  of  recital,  effect  of,  sec.  38,  p.  286 
after  many  years  slight  proof  sufficient,  sec.  38,  p.  286 

g.  personal  service  out  of  state,  sec.  38,  p.  286 
is  constructive  service,  sec.  38,  p.  286 

and  allowed  on  like  showing  as  for  publication,  sec.  38,  p.  286 
and  usually  length  of  service  the  same,  sec.  38,  p.  286 
proof  of  personal  service  of  process,  sec.  39 

service,  not  proof  of,  gives  jurisdiction,  sec.  39,  p.  287 
service  by  officer  proof  of  by  his  return,  sec.  39,  p.  287 
by  private  individual  by  his  affidavit,  sec.  39,  p.  287 
but  such  modes  not  exclusive,  but  proof  may  be  made  otherwise, 
sec.  39,  p.  287 
but  sometimes  held  can  not  be  by  parol,  sec.  39,  p.  287 
and  this  so  where  question  arises  on  appeal,  sec.  39,  pp.  287,  288 
facts  necessary  to  show  valid  service  must  be  shown,  sec.  39,  p.  288 
competency  of  private  individual  to  sei've  must  be  shown,  when, 
sec.  39,  p.  288 
but  failure  to  show  mere  irregularity,  sec.  39,  p.  288 
in  other  respects  return  and  affidavit  the  same,  sec.  39,  p.  288 
what  sufficient  to  be  shown,  sec.  39,  pp.  288,  289 
service  of  copy  of  complaint  must  appear,  when,  sec.  39,  p.  289 

and  certified  copy,  sec.  39,  p.  289 
how  writ  must  be  delivered,  sec.  39,  p.  289 
service  by  mail,  what  sufficient  proof  of,  sec.  39,  p.  289 
strictness  required  where  service  by  leaving  copy,  sec.  39,  p.  290 
must  show  place  of  service,  sec.  39,  p.  290 

but  when  will  be  presumed  to  have  been  within  jurisdiction,  sec. 
39,  p.  290 
failure  to  give  name  of  party  served  ;  service  a  nullity,  sec.  39,  p. 

290 
variance  in  name  in  summons  and  return,  effect  of,  sec.  39,  p.  290 
action  against  husband  and  wife,  effect  of  proof  of  service  on  hus- 
band, sec.  39,  p.  290 
proof  necessary  where  service  allowed  on  one  person  if  another 

not  found,  sec.  39,  p.  291 
service  how  shown  by  acceptance  of,  sec.  39,  p.  291 
by  third  party  authority  must  ap^iear,  sec.  39,  p.  291 
can  not  be  made  by  a  minor,  or  by  guardian  for  him,  sec.  39,  p. 

291 
genuineness  of  signature  to  acceptance  must  be  shown,  when, 
sec.  39,  p.  29r 
service  out  of  state,  what  necessary,  sec.  39,  p.  292 
what  necessary  as  to  time  of  service,  sec.  39,  j).  292 
return  may  be  amended  even  after  judgment,  sec.  39,  p.  292 


816  INDEX. 

Jurisdiction —  Continued. 

but  subject  to  intervening  rights,  when,  sec.  39,  p.  292 
must  be  upon  notice,  when,  sec.  39,  p.  292 
found  defective  on  appeal,  effect  of,  sec.  39,  p.  293 
"when  verification  of  return  necessary,  sec.  39,  p.  293 
by  deputy,  must  be  in  name  of  principal  sec.  39,  p.  293 
by  special  deputy,  how  proof  made,  sec.  39,  p.  293 
need  not  appear  that  service  was  by  deputy,  when,  sec  39,  p.  293 
eflfect  of  return  in  name  of  special  deputy,  sec.  39,  p.  294 
time  when  return  should  be  made,  sec.  39,  p,  294 
effect  of  return,  whether  conclusive  or  not,  sec.  39,  p.  294 
proof  by  private  individual  may  be  contradicted,  sec.  39.  p  295 
defects  in  return  not  ground  for  quashing  writ,  sec.  39,  p.  295 
due  service  when  presumed,  sec.  39,  p.  295 
but  proof  showing  insufficient  service  not  aided  by  presumption, 

when,  sec.  39,  p.  295 
degree  of  exactness  required  in  proof,  sec.  39,  p  295 
distinction  between  personal  and  constructive  service,  sec.  39,  pp. 

295,  296 
question  on  appeal  not  necessarily  one  of  jurisdiction,  sec.  39,  p 

296 
jurisdiction  should  not  be  allowed  to  fail  for  want  of  formal  proof, 
sec.  39,  pp.  296,  297 
defective  process  and  service,  sec.  40 

distinction  between  defective  and  void  service,  sec  40,  pp.  297,  299 
former  confers  jurisdiction,  latter  not,  sec.  40,  p.  297 
latter  ground  for  collateral  attack,  former  not,  sec.  40,  p.  297 
proof  may  be  amended,  sec.  40,  p.  298 
when  can  not  be  amended  after  appeal,  sec.  40,  p.  298 
distinction  between  actual  and  constructive  service  as  to  effect  of, 
sec.  40,  pp.  298,  299 
waiver  of  process  and  service  and  defects  therein,  sec.  41 
effect  of  general  appearance,  see.  41,  p.  300 

is  equivalent  to  service,  sec.  41,  p.  300 
persons  under  disabilities  can  not  waive,  sec.  41,  p.  300 
nor  can  their  guardians,  sec.  41,  p.  300 
exceptions  in  case  of  guardians,  sec.  41,  p.  300 
service  on  minor  necessary  to  authorize  appointment  of  guardian 
ad  litem,  sec.  41,  p.  301 
and  person  appointed  can  do  no  act  conferring  jurisdiction,  sec 

41,  p.  301 
effect  of  such  appointment  and  appearance,  sec.  41,  pp.  301,  302 
distinction  between  and  failure  to  appoint  where  there  is  ser- 
vice, sec.  41,  p.  302 
recitals  in  record  binding  on  minors,  sec.  41,  p.  302 
when  service  on  minor  not  necessary  to  give  jurisdiction,  sec.  41, 
p.  302 
in  case  of  petitions  in  proceedings  not  adversary,  sec.  41,  p.  302 
attorney  can  not  waive  service  on  minor,  sec.  41,  p    303 
receipt  of  benefits  of  judgments  effect  of  as  waiver,  sec.  41,  p.  303 
agreement  to  waive  return  of  service,  effect  of,  sec.  41,  p.  303 
summons  by  wrong  name,  effect  of  appearance,  sec.  41,  p.  303 
setting  up  objections,  effect  of  as  waiver  of  other  objections,  sec. 

41,  p.  303 
failure  to  appear  and  object,  effect  of,  sec.  41,  p.  303 
time  within  which  objection  to  defects  may  be  taken,  sec.  41,  p.  304 
relief  on  account  of  fraud,  sec.  41,  p.  304 
acceptance  of  service,  effect  of  as  a  waiver,  sec. 41,  p.  304 


INDEX.  817 

Jurisdiction —  ConHnved. 

authority  of  agent  to  waive,  sec.  41,  p.  304 

waiver  without  appearance,  how  may  be  done,  sec.  41,  pp.  304,  305 

bringing  action  in  wrong  county,  how  waived,  sec.  41,  p.  305 

appearance  and  contest  of  service  does  not  waive  right  to  writ  af 
error,  sec.  41,  p.  305 
of  new  parties  and  amended  pleadings,  sec.  42 

when  new  parties  made,  how  jurisdiction  obtained,  sec.  42,  p.  305 
no  new  service  necessary  when  new  parties  plaintiff  made,  sec. 
42,  p.  305 

auxiliary  proceedings  in  equity  service  may  be  made  on  attorneys, 
when,  sec.  42,  p.  305 

an  amendment  of  complaint  where  no  appearance  when  new  ser- 
vice necessary,  sec.  42,  p.  306 

new  parties  when  new  service  on  original  parties  necessary,  sec. 
42,  p.  306 

presumptions  in  such  cases,  sec.  42,  p.  306 

substituted  plaintiff  no  new  process  necessary,  sec.  42,  pp.  306,  307 
or  where  name  of  plaintiff  stricken  out,  sec.  42,  p.  307 

in  case  of  death  of  defendant  and  substitution  of  representative 
or  heir,  what  notice  necessary,  sec.  42,  pp.  307,  308 
when  cause  pending  on  writ  of  error,  sec.  42.  p.  307 
decision  after  death  relates  back,  sec.  42,  p.  307 

on  reversal,  what  necessary  in  court  below,  in  case  of  death,  sec. 
42,  p.  307 
in  actions  against  corporations,  sec.  43 

manner  of  making  service  on,  difference  between  and  on  natural 
persons,  sec.  43,  p.  308 

statutes  compelling  submission  of,  to  service  out  of  state  as  con- 
dition of  doing  business,  sec.  43,  p.  308 

constitutionality  of  such  statutes  upheld,  sec.  43.  p.  308 

conditions  must  be  reasonable,  sec.  43,  pp.  308,  309 

right  to  serve  in  state  other  than  that  of  its  creation  wholly  statu- 
tory, sec.  43,  p.  309 

right  to  sue  in  foreign  state  not  confined  to  actions  growing  out  of 
business  done  therein,  sec.  43,  p.  309 

distinction  as  to  corporations  acting  under  interstate  commerce 
law,  sec.  43,  p.  310 

corporation  not  a  citizen  within  meaning  of  constitution,  sec.  43, 
p.  310 
and  state  may  impose  conditions  upon  which  it  may  do  business 
therein,  sec.  43,  p.  311 

right  to  trial  within  county  or  state  of  residence  a  personal  privi- 
lege and  may  be  waived,  sec.  43,  p.  311 

corporation  doing   business   in    state  where  conditions    imposed 
waives  right  to  be  sued  elsewhere,  sec.  43,  p.  311 

but  can  not,  independently  of  such  statute,  be  sued  out  of  its  stfite, 
sec.  43,  pp.  311.  212 

upon  whom  service  on  may  be  made.  sec.  43,  pp.  313-316 

as  to  manner  of  service  statute  must  be  strictlv  pursued,  sec.  43,  p. 
316 

"station  agent,"  meaning  of,  sec.  43,  p.  316 

return  of  officer  a.s  to  kind  of  officer  served,  effect  of,  sec.  43,  p.  316 

service  on  two  officers  required,  service  on  one  insufficient,  sec.  43, 
pp.  316,  317 

"general  agent"  and  "managing  agent,"  meaning  of,  sec.  43,  pp. 
317,  318 

mav  be  sued  in  any  county,  sec.  43,  p.  318 
59 


I 


818  INDEX. 

Jurisdiction —  Continued. 

agent  or  officer  can  not  be  served  outside  of  territory  he  repre- 
sents, sec.  43,  pp.  318,  319 
or  outside  of  county  in  which  public  corporation  is  situated,  sec. 
43,  p.  319 
service  on  officer  in  foreign  state,  must  be  at  the  time  acting  for 

the  corporation  in  such  state,  sec.  43,  p.  319 
service  may  be  on  mere  clerk  if  statute  authorizes,  sec.  43,  p.  319 
what  will  amount  to  such  doing  business  as  to  authorize  service  in 

foreign  state,  sec.  43,  pp.  319,  320 
presence  of  officers  alone  will  not  authorize,  when,  sec.  43,  p.  320 
service  by  publication  may  be  had,  when,  sec.  43,  p.  321 
when  may  be  sued  in  state  of  residence  of  either  plaintiff  or  de- 
fendant, sec.  43,  p.  322 
sometimes   right   to   serve   depends   upon   presence   of   property 

within  jurisdiction,  sec.  43,  p.  322 
in  federal  court  law  of  state  in  which  court  held  controls,  when. 

sec.  43,  pp.  322,  323 
different  rule  as  to  service  where  corporation  created  by  act  of 

congress,  sec.  43,  p.  323 

may  be  sued  in  any  state  where  is  doing  business,  sec.  43,  p.  323 

doing  business  in  another  state  does  not  change  place  of  cizenship, 

sec.  43,  pp.  323,  324 
where  cross  complaint  is  filed,  sec.  44 

new  parties  brought  in  by  must  be  served,  sec.  44,  p.  324 
but  it'  against  parties  before  the  court,  not  necessary,  sec.  44,  p.  324 
when  party  must  take  notice  of  all  pleadings  filed,  sec.  44,  p.  324 
where  service  is  not  necessary  in  case  of  default  under  original 

complaint,  sec.  44,  p.  324 

when  service  of  pleading,  without  summons,  sufficient,  sec.  44, 

p.  324 

stranger  coming  in  and  setting  up  cause  of  action,  summons  must 

issue,  sec.  44,  p.  325 
in  equity  service  may  be  made  on  attorney,  sec.  44,  p  325 
commencement  of  action  in  wrong  place  and  its  effects,  sec.  45 
at  common  law  in  local  actions  venue  must  be  properly  laid,  sec. 

45,  p.  326 
rule  modified  by  statutes,  sec.  45,  p.  326 
action  in  wrong  county,  partv  must  demand  change  of  venue,  sec. 

45,  p.  326 
appearance   without   objection,  when   waives  bringing   in  wrong 

county,  sec.  45,  p.  327 
when  application  for  change  must  be  made,  sec.  45,  p.  327 
failing  to  appear,  party  can  not  raise  question,  sec.  45,  p.  327 
where  no  statute  authorizes  change,  what  remedy  may  be  had,  sec. 

45,  p.  327 
distinction  between  transitory  and  local  actions,  sec.  45,  p.  327 
in  former  jurisdiction  given  by  consent,  in  latter  not,  sec.  45,  p. 

327 
in  latter  court   has   no  jurisdiction   if   action   brought  in  wrong 

county,  sec.  45,  p.  328 
but  legislature  may  change  this  rule,  sec.  45,  p.  328 
statute  requiring  application  for  change  in  local  actions,  rule  of 

waiver  applies  as  in  transitory  actions,  sec.  45,  p.  328 
held  statute  in  general  terms  applies  to  local  actions,  sec.  45,  p. 

328 
cases  to  contrary,  sec.  45,  p.  328 
different  rule  in  other  states,  sec.  45,  p.  330 


I 


INDEX.  819 

Jurisdiction — Continued. 

distinction  applied  to  actions  purely  in  rem.,  sec.  45,  p.  330 

independent  of  statute  jurisdiction   may  be  attacked  without  ap- 
plication for  change,  sec.  45,  p.  331 

actions  made  local  by  constitution,  effect  of,  seo.  45,  p.  331 

statutes  changing  rule  modify  statutes  fixing  place  of  trial,  sec.  45, 
p.  331 

effect  of  application  for  change,  sec.  45,  p.  332 

deprives  court  of  jurisdiction,  sec.  45,  p.  332 

right  to  have  action  brought  in  certain  county  personal  privilege, 
vyhen,  sec.  45,  p.  332 

and  may  be  v^aived  when,  sec.  45,  p.  332 

action  against  several,  any  one  may  have  change,  sec.  45,  p.  332 

right  to  change,  when  absolute,  sec.  45,  p.  332 

effect  of  constitution  requiring  actions  to  be  commenced  in  certain 
county,  sec.  45,  p.  333 
may  be  tried  in  other  county,  sec.  45,  p.  333 

distinction   between    jurisdiction    of   general  subject-matter  and 
particular  cause  of  action,  sec.  45,  p.  333 

action  in  wrong  county  can  not  be  dismissed,  when,  sec.  45,  p.  333 

action  on  appeal,  when  change  may  be  had,  sec.  45,  p.  334 

rule  as  to  non-residence,  sec.  45,  p.  334 
grounds  of  change  of  venue,  sec.  46 

are  purely  statutory,  sec.  46,  p.  334 

different  in  different  states,  sec.  46,  p.  334 

enumerated,  sec.  46,  pp.  334,  335 

effect  on  jurisdiction  of  different  grounds,  sec.  46,  p.  335 

when  right  to  change  is  absolute,  effect  of  application  for,  sec.  46, 

p.  335 
failure  to  make  application,  effect  of,  sec.  46,  p.  335 
disqualification  of  judge,  effect  of,  sec.  46,  pp.  335,  336,  342 
no  application  for  change  necessary,  sec.  46,  p.  335 
duty  to  decline  to  act,  sec.  46,  p.  335 
application  made,  subsequent  acts  void,  sec.  46,  p.  336 
bias  or  prejudice  of  inhabitants,  jurisdiction  not  involved,  sec.  46, 
p.  336 
right  of  change  for,  whether  absolute  or  not,  sec.  46,  p.  336 
counter  evidence  may  be  given,  sec.  46,  p.  336 
different  rule  in  some  states,  sec.  46,  p.  337 
whether  application,  or  order  for  change,  ousts  jurisdiction,  sec. 

46,  p.  337 
judge  attorney  for  party,  effect  of,  sec.  46,  p.  337 

what  will  constitute  him  such  attorney,  sec.  46,  p.  337 
judge  witness  in  cause,  effect  of,  sec.  46,  p.  338 
effect  of  joining  cause  removable  with  one  not  removable,  sec.  46, 
p.  338 
application  for  change  and  its  effects,  sec.  47 

must  be  made  within  time  fixed  by  statute,  sec.  47,  p.  338 

subject  to  right  to  relief  for  excusable  neglect,  mistake,  etc.,  sec. 
47,  p.  338 
time  for,  fixed  by  rules  of  court,  effect  of,  sec.  47,  p.  338 
cause  not  discovered  until  after  time,  effect  of,  sec.  47,  p.  339 
number  of  changes  that  may  be  had,  sec.  47,  p.  339 
nature  and  form  of,  governed  by  statute,  sec.  47,  p.  339 
•  what  is  usually  required,  sec  47,  pp.  339,  340 
statute  must  be  complied  with,  sec.  47,  p.  340 
more  than  statute  requires  can  not  be  required  by  rule  of  court, 
sec.  47,  p.  340 


820  INDEX. 

Jurisdiction — Continued. 

no  vested  right  to,  statute  may  be  changed,  sec.  47,  p.  340 

infant  may  make  affidavit  for,  sec.  47,  p.  340 

affidavit  may  be  amended,  sec.  47.  p.  340 

what  affidavit  must  contain,  sec.  47,  pp.  340,  341 

VFhen  judge  may  take  into  account  his  own  knowledge,  sec.  47, 
pp.  341,  342 

on  ground  of  convenience  of  witnesses,  when  made,  sec.  47,  p.  342 

fraudulently  joining  resident  to  give  jurisdiction  over  non-resi- 
dent, effect  of,  sec.  47,  p.  342 
other  necessary  proceedings  to  procure  transfer,  sec.  48 

usually  affidavit  alone  necessary,  sec.  48,  p.  343 
but  in  some  cases  written  demand  required,  sec.  48,  p.  343 
payment  of  costs  and  transmission  of  papers,  sec.  48,  o.  343 
pending  performance  of  conditions  after  application,  where  juris- 
diction rests,  sec.  48,  p.  343 
in  what  cases  conditions  not  imposed,  sec.  48,  p.  343 
presumption  that  conditions  not  performed,  when,  sec.  48,  p.  344 
relief  from  failure  to  perform  in  time,  sec.  48,  p.  344 
court  can  not  impose  conditions  not  required  by  statute,  sec.  48, 
p.  344 
waiver  as  to  venue,  sec.  49 

right  to  trial  in  particular  place  may  be  waived,  sec.  49,  p.  344 

distinction  between  transitory  and  local  actions,  sec.  49,  p.  344 
failure  to  apply  for  change  in  time  waives,  when,  sec.  49,  pp.  344,  345 
when  required  to  be  made,  sec.  49,  p.  345 
when  may  be  renewed,  sec.  49,  p.  346 
when  objection  may  be  made  at  the  trial,  sec.  49,  p.  346 
failure  to  comply  with  subsequent  conditions,  effect  of,  sec.  49,  p. 

346 
defects  in  application,  how  waived,  sec.  49,  p.  346 
consent  to  change  waives  application,  sec.  49,  p.  346 
appearance  in  court  to  which  action  removed,  effect  of,  sec.  49,  p. 
347 
counter  motion  to  retain  case,  sec.  50 

action  brought  in  wrong  county,  convenience  of  witnesses  no  de- 
fense to  application  for  change,  sec.  50,  p.  347 
counter  motion  to  retain  not  proper,  sec.  50,  p.  347 
when  counter  motion  to  retain  may  be  considered,  sec.  50,  pp.  347, 

348 
when  counter  motion  not  neces.sary  to  retain  case,  sec.  50,  p.  348 
convenience  of  witnesses,  when  may  be  considered,  sec   50,  p.  3481 
order  for  change  and  its  effects,  sec.  51 

whether  application  or  order  divests  court  of  jurisdiction,  sec.  51, 

pp.  348,  349 
depends  upon  ground  of  application  and  whether  right  is  absolute, 

sec.  51,  p.  349 
if  absolute  order  made  as  of  course,  sec.  51,  p.  346 

and  application  terminates  or  suspends  jurisdiction,  sec.  51,  p. ; 
349 
only  suspends  jurisdiction,  when,  sec.  51,  p.  349 

revived  by  failure  to  comply  with  subsequent  conditions,  sec.  51,1 

p.  349 

what  vests  jurisdiction  in  court  to  which  transfer  ordered,  sec.  51, j 

p.  349 

power  of  courts  from  and  to  which  change  ordered,  pending  per-] 
formance  of  conditions,  sec.  51,  p.  349 


INDEX.  821 

JuTisdiction— Continued. 

order  at  what  time  vests  court  to  which  removed  with  jurisdiction, 

sec.  51,  pp.  349,  350 
failure  to  perform  conditions,  court  making  order  may  set  it  aside, 

sec.  51,  p.  350 
when  appears  from  order  that  no  legal  cause  for  change,  other 

court  should  refuse  to  act,  sec.  51,  p.  350 
otherwise  where  facts  authorizing  do  not  exist,  but  does  not  appear 

from  record,  sec.  51,  p.  350 
question  as  to  cause  for  removal  must  be  contested  when   applica- 
tion made,  when,  sec.  51,  p.  350 
when  order  does  not  transfer  jurisdiction,  sec.  51,  pp.  350,  351 
presumption  that  court  acted  rightly  in  granting  change,  sec.  51, 

p.  351 
but  if  change  not  authorized  under  any  circumstances  order  grant 

ing  a  nullity,  sec.  51,  p.  351 
proceedings  defective,  order  erroneous  only,  sec.  51,  p.  351 
when  order  may  be  collaterally  attacked,  sec.  51,  p.  351 
when  question  on  appeal  one  of  law,  sec.  51,  pp.  351,  352 
when  order  granting  conclusive,  sec.  51,  p.  352 
conditional  order,  when  may  be  made,  sec.  51,  p.  352 
when  court  may  set  aside  order,  sec.  51,  p.  352 
remanding  cause,  sec.  52 
when  order  granting  void,  no  order  remanding  necessary,  sec.  52, 
p.  352 
and  court  to  which  transferred  has  no  jurisdiction  to  remand, 

sec.  52,  p.  352 
court  may  be  prevented  from  proceeding,  sec.  52,  p.  352 
and  court  making  order  compelled  to  proceed,  sec.  52,  pp.  352, 

353 
held,  court  may  order  re-transfer,  sec.  52,  p.  353 
irregular  transfer,  how  taken  advantage  of,  sec.  52,  p.  354 
judges  defined,  sec  53 

all  officers  performing  judicial  functions  considered  here,  sec.  53, 

p.  354 
what  officers  acting  judicially  not  judges,  sec.  53,  p.  354 
what  officers  are  judges,  sec.  53,  p.  355 
power  of  legislature  to  confer  and  take  away  jurisdiction,  sec.  54 
powers  may  be  constitutional  or  by  virtue  of  statutes,  sec.  54,  p. 

355 
if  constitutional  legislature  can  not  limit  or  control,  sec.  54,  p.  355 

can  not  be  given  to  commission,  sec.  54,  pp.  355,  356 
legislature  can  not  vest  non-judicial  officers  with  judicial  powers, 
sec.  54,  p.  356 
nor  can  such  powers  be  conferred  by  consent,  sec.  54,  p.  356 
same  officer  may  perform  judicial  and  other  functions,  sec.  54,  p. 

356 
but  power  to  confer  judicial  and  other  powers  on  same  officers  de- 
pends on  constitution,  sec.  54,  p.  356 
different  departments  of  government  separated  by  constitutions, 

sec.  54,  p.  356 
under  such  constitutions,  judicial  powers  can  not  be  given  to  ex- 
ecutive or  legislative  officer,  sec.  54,  p.  356 
same  where  constitution  vests  all  judicial  power  in  courts,  sec. 
54,  pp.  356,  357 
what  acts  not  within  constitutional  inhibition,  sec.  54,  p.  357 
effect  of  constitutional  provision  on  existing  statutes  vesting  juris- 
diction in  officers  not  named  therein,  sec.  54,  p.  357 


822  INDEX. 

Jurisdiction —  Continued. 

power  vested  in  courts  by  constitution   can  not  be-vested  in  judges 

by  statute,  sec.  54,  pp.  357,  358 
when  question  whether  judicial  or  not  may  be  determined  from 

legislative  act,  sec.  54,  p.  358 
judge  may  have  jurisdiction  over  matters  of  which  his  court  has 

none,  sec.  54,  p.  358 
contempt,  power  of  non-judicial  office  to  punish  for,  sec.  54,  p.  359 
when  judge  can  not  be  deprived  of  office  by  statute,  sec.  54,  p.  360 
special  judges,  power  of  legislature  to  provide  for.  .sec.  54,  p.  360 
power  of  legislature  to  impose  other  than  judicial  duties  on 
judges,  sec.  55 
judges  can  not  be  compelled  to  perform  nonjudicial  duties,  sec. 
55,  p.  361 
but  may  perform  ministerial  functions,  sec.  55,  p.  362 
nature  of  act  not  changed  because  performed  by  a  judge,  sec.  55, 
p.  362 
can  not  perform  other  than  judicial  duties  under  some  constitu- 
tions, sec.  55,  p.  362 
inhibition  applies  to  state  and  not  to  municipal  governments,  sec. 

55,  p.  362 

different  powers  often  conferred  on  inferior  tribunals  and  officers, 

sec.  55,  p,  363 
when  judge  may  perform  ministerial  duties,  sec.  55,  p,  364 
attempt  to  perform  duties  belonging  to  other  department,  acts 
void,  sec.  55,  p.  364 
and  act  of  legislature  attempting  to  authorize  such  performance 
unconstitutional,  sec.  55,  p.  365 
general  powers  and  duties  of  judges,  sec.  56 
are  judicial,  sec.  56,  p.  365 

certain  of  must  be  performed  by  court,  others  by  judges  at  cham- 
bers, sec.  56,  p.  365 
can  not  be  delegated  to  others,  sec.  56,  p.  365 
if  imposed  by  censtitution  can  not  be  relieved  of  by  statute,  sec. 

56,  p.  365 

usually,  but  not  always,  cease  with  termination  of  office,  sec.  56,  p. 

365 
what  acts  may  be  done  after  term  of  office  expires,  sec.  56,  p.  365 
powers  confined  to  territorial  limits,  sec.  56,  p.  366 

exceptions  to  this  rule,  sec.  56,  p.  366 
power  to  appoint  officers  and  employes,  sec.  56.  p.  366 
can  not  fix  salary  of  court  reporter,  sec.  56,  p.  366 
power  to  act  in  another  district,  sec.  57,  p.  366 

generally  limited  to  county  or  district  over  which  court  has  juris- 
diction, sec.  57,  p.  366 
but  power  to  act  elsewhere  may  be  given  by  statute,  when,  .sec.  57, 
p.  366 
provision  for  frequently  made,  sec.  57,  p.  366 
held  that  as  state  officers  may  act  in  other  districts  without  stat- 
utory authority,  sec.  57,  p.  367 
but  better  rule  the  other  way,  sec.  57,  p.  367 
in  some  states  provided  for  by  constitution,  sec.  57,  p.  367 
authority  of  federal  judges  in  other  districts,  sec.  57,  pp.  367,  368 
when  statutes  authorizing  judge  to  act  in  other  county  or  district, 

valid,  sec.  57,  p.  369 
where  act  must  be  done  by  court  can  not  be  done  out  of  the  ter- 
ritory where  action  pending,  sec.  57,  p.  370 
exceptions  to  rule,  sec.  57,  \>.  370 


INDEX.  823 

Jurisdiction — Continued. 

two  judges  can  not  act  at  same  time  for  same  court,  when,  sec.  57, 

p.  370 
when  special  and  regular  terms  may  be  held  at  same  time,  sec.  57, 

p.  370 
presumptions  in  favor  of  acts  of  judge  from  another  district,  sec. 

57,  p.  371 
law  providing  for  calling  in  non-resident  judge  must  be  complied 

J  with,  sec.  57,  p.  371 

power  to  "  hold  court,"  what  included  in,  sec.  57,  p.  371 
*  power  of  legislature  to  authorize  under  constitution  giving  such  . 

power,  sec.  57,  p.  371 
performs  all  the  duties  of  resident  judge,  wnen,  sec.  57,  p.  371 
powers  of  resident  judge  suspended   sec.  57,  pp.  371,  372 
by  whom  bill  of  exceptions  settled,  sec.  57,  p.  372 
where  may  be  settled  and  signed,  sec.  57,  p.  372 
can  not  act  out  of  state,  sec.  57,  p.  372 
authority  at  chambers,  sec.  58 

acts  by  courts  must  be  done  in  term  time,  sec.  58,  p.  372 
exceptions  by  statutes,  sec.  58,  pp.  372,  373 
such  statutes  exceptional  and  rare,  sec.  58,  p.  373 
acts  that  may  be  done  at  chambers,  usually  provided  by  statute, 
sec.  58,  p.  373 
and  in  some  cases  held  must  be,  sec.  58,  p.  373 
incidental  to  jurisdiction  of  the  court,  sec.  58,  p.  373 
and  can  be  exercised  only  over  matters  of  which  court  has  juris- 
diction, sec.  58,  p.  373 
powers  given  to  court  by  constitution  can  not  be  vested  in  judge, 

by  statute,  sec.  58,  p.  374 
power  established  by  long  usage,  sec.  58,  p.  375 
existed  at  common  law,  sec.  58,  p.  375 

and  included  in  general  grant  of  jurisdiction  to  court,  sec.  58,  p.  375 
but  usage  not  applicable  to  special  powers  granted  by  statute,  sec. 

58,  p.  375 
held  power  to  "  hold  court "  in  another  district  does  not  authorize 

to  act  at  chambers,  sec.  58,  p.  375 
but  usually  judge  called  in  has  all  powers  of  resident  judge,  sec. 

58,  pp.  375,  376 
powers  at  chambers,  as  usually  granted,  enumerated,  sec.  58,  p.  376 
can  not  issue  injunction   to  operate  beyond  jurisdiction  of  court, 

sec.  58,  p.  376 
power  independent  of  terms  of  court  sec.  59,  p.  376 
authority  in  vacation,  sec.  59 

can  not  perform  functions  of  court  in  vacation,  sec.  59,  p.  377 
unless  expressly  authorized  by  statute  and  not  forbidden  by  con- 
stitution,  sec.  59,  p.  377 
entry  of  judgment  ministerial  act  and  may  be  performed  in  vaca- 
tion, sec.  59,  p.  377 
court  mav  be,  by  law,  always  in  session  for  urgent  business,  sc.  59 

p.  377 
when  "court"  and  "judge"  are  synonymous  in  grunting  power, 

sec.  59,  p.  377 
acts  in  vacation,  when  judicial  acts  of  the  court,  sec.  59,  p.  377 
orders  that  may  be  made  at  chambers  may  be  made  in  vacation,  as 

a  rule,  sec.  59,  p.  37S 

de  jure  and  de  facto  judges,  sec.  60 
who  is  a  de  Jacto  officer,  sec.  60,  pp.  379-383 
color  of  title,  when  must  be  shown,  soc.  60,  pp.  380,  381 


824 


INDEX. 


Jurisdiction — Continued. 

and  reputation  of  being  an  officer,  sec.  60,  p.  381 

mere  exercise  of  duties  of  office  not  enough,  sec.  60,  p.  382 

must  assume  to  act  as  judge,  sec.  60,  p.  382 

attorney  appointed  to  act  as  special  not  de  facto  judire,  sec.  60,  p 

382 
exception  where  irregularly  appointed  where  appointment  author- 
ized, sec.  60,  p.  382 
can  be  no  judge  de  jure  or  de  facto  if  no  court,  sec.  60,  p.  382 
acts  of  de  facto  judge  not  invalid,  sec.  33,  p.  223 ;  sec.  60,  p.  383 

nor  subject  to  collateral  attack,  sec.  60,  p.  383 
but  whether  de  facto  judge  or  mere  intruder  may  be  questioned 

collaterally,  sec.  60,  p.  383 
question  of  right  to  office  must  be  raised  by  direct  action  for  that 

purpose,  sec.  60,  p.  383 
nature  of  such  action,  sec.  60,  p.  383 
mistake  as  to  termination  of  office,  action  in  good  faith,  effect  of, 

sec.  60,  pp.  383,  384 
failure  to  comply  with  condition  subsequent  to  election,  as  to  give 
bond,  effect  of,  sec.  60,  p.  384 
is  rightful  officer  until  right  forfeited  by  direct  action,  sec.  60,  p. 
384 
appointment  under  unconstitutional  statute,  effect  of,  sec.  60,  p. 

384 
may  be  both  dejure  and  dc  facto  indge  at  same  time,  sec.  60,  p.  385 
but  not  two  of  either,  sec.  60,  p.  385 

nor  can  a  de  facto  and  dejure  indge  be  in  actual  possession  of,  or 
exercising  duties  of  office  at  same  time,  sec.  60,  p.  386 
rule  that  upholds  acts  of  de  facto  judge  extends  to  all  his  duties, 
sec.  60,  p.  386 
special  judges,  sec.  61 

who  are,  sec.  61,  p.  387 

power  to  appoint  attorneys  to  act  as,  sec.  61,  pp.  387,  388 

how  judge  of  another  county  or  district  may  be  called  ^o  act  as, 

sec.  61,  pp.  388.  389 
when  cause  for  must  appear  on  face  of  record,  sec.  61,  p.  389 
authority  will  be  presumed,  when,  sec.  61,  p.  389 
recital  in  record  showing  necessary  facts,  effect  of,  sec.  61,  p.  390 
regular  judge  can  not  recuse  himself  and  appoint  special,  when, 

sec.  61,  p.  390 
when  and  how  objection  to  appointment  may  be  made,  sec.  61,  p. 

390 
when  objection  obviated  by  new  appointment,  sec.  61,  p.  391 
same  presumptions  apply  to  proceedings  of  as  to  regular  judges, 

sec.  61,  p.  391 
record  showing  regular  appointment  when  conclusive,  sec.  6i,  p.  391 
attorney  acting  by  consent,  only,  acts  of  void,  sec.  61,  p.  391 
when  appointment  not  in  writing  will  be  held  insufficient,  sec.  61, 

p.  391 
effect  of  failure  to  appoint  in  writing  on  acts  of,  sec.  61,  p.  391 
are  voidable  only  and  not  void,  sec.  61,  p.  391 
failure  to  take  oath  of  office,  effect  of,  sec.  61,  p.  392 
prohibition  when  will  lie  to  prevent  action  by,  sec.  61,  p.  392 
failure  of  to  appear  and  act,  effect  of,  sec.  61,  p.  392 
extent  of  powers  of  attorney  appointed  as,  controlled  by  statute, 

sec.  61,  pp.  392,393 
when  given  all  powers  of  regular  judge  may  sicn  bill  of  excep- 
tions after  term  of  appointment,  sec.  61,  p.  393 


INDEX.  825 

Jnrisdiction — Contimied. 

powers  of  judge  called  from  another  district  limited  by  constitu- 
tion and  statutes,  sec.  61,  p.  393 
may  follow  cause  if  transferred  to  another  county,  sec.  61,  pp.  393, 

394 
special  can  not  appoint  another  judge,  sec.  61,  p.  394 
can  not  hold  court  while  regular  judge  is  sitting,  sec.  61,  p.  394 
to  try  particular  cause  may  retry  same  if  reversed  on  appeal,  sec. 

61,  p.  394 
appointed  for  disqualification  of  regular  judge  may  continue  after 
another  judge  not  disqualified  takes  the  bench,  sec.  61,  pp, 
394,  395 
to  try  particular  cause,  what  includes,  sec.  61,  p.  395 
special  judge  who  refuses  may  be  compelled  to  act,  sec.  61,  p.  395 
judges  disqualified  by  interest  or  otherwise,  sec.  62 
may  be  wholly  disqualified  by,  sec.  62,  p.  395 
disqualification  can  not  be  removed  by  consent,  sec.  62,  p.  395 
what  interest  will  disqualify,  sec.  62,  pp.  395-400 
general  interest  as  tax-payer,  effect  of,  sec.  62,  pp.  396,  397 
bias  or  prejudice  of  judge,  effect  of,  sec.  62,  p.  396 
compared  with  the  interest  that  will  disqualify  a  juror,  sec.  62,  p. 

399 
circumstances  that  will  disqualify  enumerated,  sec.  62,  p.  400 
pecuniary  interest  in  result, 
having  been  of  counsel, 

consanguinity  or  affinity,  bias  or  prejudice,  sec.  62,  p.  400 
forbidden  by  law  to  act,  his  acts  void,  sec.  62,  pp.  401,  402 
and  should  be  so  if  disqualified  by  interest,  whether  forbidden  to 
act  or  not,  sec.  62,  p.  402 
and  whether  objection  is  made  by  parties  or  not,  sec.  62,  pp. 

402-408 
held  otherwise  in  some  cases,  sec.  62,  p.  403 
effect  where  one  of  several  judges  disqualified,  sec.  62,  p.  408 
where  transfer  to  another  county  is  authorized  on  account  of,  judge 

must  pass  upon  question  of  disqualification,  sec.  62,  p.  408 
and  if  exists  must  order  transfer,  sec.  62,  p.  408 
to  what  extent  not  disqualified  to  act,  sec.  62,  p.  409 

where  failure  to  act  will  deprive  parties  of  all  remedy,  sec.  62, 
p.  409 
if  persists  in  acting,  bow  may  be  prevented,  sec.  62,  p.  410 
when  refuses  to  act,  when  not  disqualified,  how  may  be  compelled 

to  act,  sec.  62,  p.  411 
not  disqualiffed  in  appellate  court  because  of  having  acted  in  lower 

court,  sec.  62,  p.  41 1 
disqualified  to  hold  the  office,  effect  of,  sec.  62,  p.  412 

bias  and  prejudice  of  the  judge  as  affecting  jurisdiction,  sec.  63 

is  usually  made  ground  for  change  of  venue,  sec.  63,  p.  412 
but  not  in  some  of  the  states,  sec.  63,  p.  412 
may  arise  from  causes  which  disqualify,  sec.  63,  p.  413 
but  is  extended  to  causes  not  involving  personal  interest,  sec.  63, 
p.  413 
but  as  to  the  latter,  may  be  waived  by  parties,  sec.  63,  p.  414 
and  if  objection  not  made  in  time  proceedings  not  void,  sec.  63, 
p.  414 
liability  of  judge  acting  without  jurisdiction,  sec.  64 

wholly  without  jurisdiction,  liable  as  tre?i[)asser,  sec.  64,  p.  414 
but  if  has  jurisdiction  of  subject-matter  and  person,  not  liable  for 
acts  in  excess  of  jurisdiction,  sec.  64,  p.  414 


826  INDEX. 

Jurisdiction — Continued. 

not  liable  for  error  of  judgment,  sec.  04,  p.  414 

even  where  result  of  lack  of  cure  or  prudence,  sec.  64,  p.  414 
or  where  done  maliciously,  sec.  64,  p.  414 
test  of  liability  is  that  which  distinguishes  void  from  voidable  or 

erroneous  judgments  or  proceeding,  sec.  64,  p.  415 
immunity  where  act  is  malicious  does  not  extend  to  ^uasi-judicial 

officers,  sec.  64,  p.  415 
and  judge  liable  for  conspiracy  with  others  to  prosecute  through 

his  court,  sec.  64,  p.  415 
when  must  determine  in  advance  whether  has  power  to  act,  effect 

of  erroneous  decision,  sec.  64,  p.  416 
when  justice  of  the  peace  liable  for  issuing  warrant  for  act  not 

constituting  public  offense,  sec.  64,  p.  417 
protection  extends  only  to  judicial  acts,  sec.  64,  p.  417 
in  some  cases  confined  to  judges  of  superior  courts,  sec.  64,  p.  417 
but  this  distinction  not  warranted,  sec.  64,  pp.  417,  418 
enough  if  judge  has  jurisdiction  of  general  subject-matter,  sec.  64, 

p.  418 
exemption  from  liability  is  for  public  good,  sec.  64,  pp.  418,  419 
judge  deprived  of  jurisdiction,  as  by  change  of  venue,  liable  if  pro- 
ceeds further,  sec.  64,  p.  419 
common  law,   equity,  and  statutory  jurisdiction,   generally, 
sec.  65 
can  not  be  separated  and  treated  independently,  sec.  65,  p.  420 
have  been  intermingled  by  constitutions  and  statutes,  sec.  65,  p. 

420 
and  rules  of  procedure  changed  and  modified,  sec.  65,  p.  420 
common  law  and  equity  jurisdiction  do  not  exist  independently 
of  constitutions  and  statutes,  sec.  65,  pp.  420,  421 
are  given  to  courts  by  general  provisions,  sec.  65,  p.  421 
what  general  grant  of  common  law  jurisdiction  includes,  sec.  65, 

p.  421 
includes  criminal  actions  as  well  as  civil  cases,  sec.  65,  p.  421 
grant  of  jurisdiction  sometimes  measured  by  "civil   action"  of 
codes,  sec.  65,  p.  421 
and  sometimes  specifically  defined  without  reference  to  common 

law  or  equity,  sec.  65,  p.  421 
and  remedies  provided  that  could  not  have  been  administered 

by  either,  sec.  65,  p.  421 
in  other  states  allowed  to  remain,  but  modified,  enlarged,  or 
limited,  sec.  65,  p.  421 
substituted  proceedings  provided  for  assistant  jurisdiction,  sec.  65, 

p.  422 
jurisdiction  in  all  these  cases  is  really  statutory,  sec.  65,  p.  422 
tendency  of  federal  courts  to  broaden  their  equitable  jurisdiction, 

sec.  65,  p.  422 
formerly  common  law  and  equity  courts  separate  and  independ- 
ent, sec.  65,  p,  422 
but  have  now  generally  been  consolidated  into  one,  sec.  65,  p.  422 
and  distinctions  between  common  law  and  equity  procedure  abol- 
ished, sec.  65,  p.  422 
therefore  question   whether  jurisdiction  belongs   to   one   or   the 

other  not  so  important,  sec.  65,  p.  422 
but  as  affecting  remedy  distinction  still  exists,  sec.  65,  p.  422 
in  some  states  common  law  or  parts  of  it  adopted,  sec.  65,  p.  423 
what  will  be  presumed  as  to  law  in  force  iri  another  state,  sec.  65, 
p.  423 


INDEX.  827 

Jurisdictioil —  Continued. 

where  statute  and  common  law  conflict,  statute  prevails,  sec.  65,  p. 

423 
but  if  common  law  and  equity  jurisdiction  given  by  constitution 

can  not  be  taken  away  by  statute,  sec.  65,  p.  423 
otherwise  may  be  controlled  by  statute,  sec.  65,  p.  423 
presumed  that  was  intention  that  common  law  should  prevail,  sec. 

65,  p.  424 

federal  courts  have  no  common  law  jurisdiction  except  by  virtue 

of  constitution  and  statutes,  sec.  65,  p.  424 
■when  cause  of  action  given  which  did  not  exist  at  common  law  or 
in  equity,  held  jurisdiction  exceptional,  sec.  65,  pp.  425,  426 
and  party  must  bring  himself  within  statute,  sec.  65,  p.  426 
no  apparent  reason  for  distinction  between  statutory  and  other 
remedies  in  this  respect,  sec.  65,  p.  426 
constitutional  jurisdiction,  sec.  66 

jurisdiction  of  superior  courts  generally  fixed  and  defined  by  con- 
stitution, sec.  66,  p.  426 
generally  done  by  conferring  in  all  cases  at  law  and  in  equity, 

sec.  66,  p.  426 
but  sometimes  specifically  defined  and  limited,  sec.  66,  p.  426 
the  same  as  if  conferred  by  statute,  except  can  not  be  taken  away 
by  statute,  sec.  66,  p.  427 
nor  modified,  limited,  or  extended,  sec.  66,  p  427 
power  of  legislature  where  jurisdiction  given  by  constitution,  pec. 

66,  p.  427 

eflfect  of  grant  of  jurisdiction  in  "cases  at  law  "  or  "  common   law 
jurisdiction," sec.  66,  p.  427 
what  includes,  sec.  66,  p.  427 
special  proceedings  and  causes,  what  are,  sec.  66,  pp.  428,  429 
distinction  between,  and  action  or  civil  action  not  warranted,  sec. 

66,  pp.  428, 429 

jurisdiction  given  by  constitution  but  procedure  not    provided, 

court  may  provide,  sec.  66,  p.  431 
power  to  issue  writs  given  by  constitution,  objects  of  can  not  be 

changed  by  statute,  sec.  66,  p.  431 
jurisdiction  conferred  by  constitution   not   exclusive   unless    ex- 
pressly made  so,  sec.  66,  p.  431 
and  may  be  conferred  concurrently  on  other  courts  by  statute, 
sec.  66,  p.  431 
probate  jurisdiction,  sec.  67 

formerly  exercised  by  what  courts,  sec.  67,  p.  431 
in  what  court  now  in  England,  sec.  67,  p.  431 
in  this  country  in  what  courts  vested,  sec.  67,  p.  432 
now  regulated  by  constitutions  and  statutes,  sec.  67,  p.  432 
broader  than  that  exercised  by  ecclesiastical  courts,  sec.  67,  p.  432 
vested  in  courts  of  general  jurisdiction,  u.sually  held  to  be  sepa- 
rate and  distinct,  sec.  67,  pp.  432,  433 
no  distinctively  probate  courts  except  in  name,  sec.  67,  p.  433 
standing  of  courts  exercising,  whether  of  superior  or  limited  juris- 
diction, sec.  67,  pp.  433-435 
generally  held  to  be  of  limited,  but  not  technically  inferior,  sec. 

67,  pp.  433,  434 

presumptions  in  favor  of  proceedings  of  sec.  67,  p.  43_4 
recital  in  record  showing  iurisdiction,  effect  of,  sec.  67,  pp.  434,  435 
distinction  between  common  law,  equity,  and  statutory  jurisdiction 
does  not  exist  in  reason,  sec.  67,  p.  435 


828  INDEX. 

Jurisdiction —  Continued. 

held  in  some  cases  to  be  inferior  courts,  sec.  67,  p.  435 

in  others  that  jDroceedings  not  conclusive,  sec.  67,  p.  436 
held  to  possess  power  to  set  aside  judgments  rendered  by  them,. 

sec.  67,  p.  436 
cases   turn  upon   language   of   constitutions   and   statutes   as    to 

standard  of  court,  sec.  67,  p.  437 
incidental  powers,  whether  courts  possess  or  not,  sec.  67,  p.  437 
authority  to  grant  letters  of  administration  sometimes  granted  to 
clerk  of  court,  sec.  67,  p.  437 
but  his  acts  in  granting  are  ministerial,  sec.  67,  p.  437 
and  no  presumption  in  favor  of,  sec.  67,  p.  437 
but  letters  granted  by  court  conclusively  presumed  facts  authoriz- 
ing existed,  sec.  67,  p.  437 
letters  themselves  conclusive  evidence  that  were  rightly  issued  as 

against  collateral  attack,  sec.  67,  p.  437 
sometimes  held  to  be  prima  facie  evidence,  sec.  67,  p.  437 

some  states  statutes  make  letters  conclusive,  sec.  67,  pp.  437,  43<S 
but  such  statutes  declare  the  otherwise  existing  rule,  sec.  67,  p. 
438 
doctrine  of  conclusiveness  extends  to  other  proceedings,  sec.  67^ 

p.  438 
but  not  when  obtained  by  fraud,  sec.  67,  p.  438 
and  sometimes  confined  to  final  decrees  or  orders,  sec.  67,  p.  438 
court,  in  final  accounting,  may  correct  mistake  in  prior  proceed- 
ings, sec.  67,  p.  438 
decree  settling  final  account  and  discharging  executor  conclusive 

until  reversed,  sec.  67,  p.  438 
grant  of  letters  can  not  be  avoided  collaterally  for  incompetency 

of  applicant,  sec.  67,  jap.  438,  439 
grant  of  jurisdiction  in  "all  probate  matters,"  what  included   in^ 

sec.  67,  pp.  439-44.5 
court  of  probate  defined,  sec.  67,  p.  439 
general  statement  of  powers  of,  sec.  67,  pp.  440,  441 
does  not  extend  to  controversies  between  estate  and  third  parties 

not  claiming  under  estate,  sec.  67,  p.  440 
or  where  right  depends  upon  question  over  which  has  no  jurisdic- 
tion, sec.  67,  p.  441 
when  may  pass  upon  question  of  title  to  real  estate,  sec.  67,  p.  441 

and  as  to  ligitimacy  of  children,  sec.  67,  p.  441 
may  distribute  to  third  party  claiming  under  heir,  sec.  67,  p.  441 
over  wills,  extent  of  jurisdiction,  sec.  67,  p.  442 

v^hen  extends  to  validity  and  construction  of,  sec.  67,  p.  442 
estates  of  infants  and  persons  of  unsound  mind,  when  have  juris- 
diction over,  sec.  67,  p.  442 
formerly  belonged  to  courts  of  chancery,  sec.  67,  p.  442 
and  in  probate  courts  controlled  bv  equity  rules,  sec.  67,  pp.  442, 
443 
distinction  between  guardians  appointed  by  court  and   testamen- 
tary guardians,  sec.  67,  p.  443 
effect  of  existing  testamentary  guardianship  over  power  to  appoint, 

sec.  67,  p.  443 
appointment  of  guardian  in  another  state  does  not  affect,  sec.  67, 

p.  443 
of  settlement  of  estates  formerly  in  chancery,  sec.  67,  p.  443 

how  grew  up,  sec.  67,  p.  443 
in  some  states  concurrent  in  chancerv  and  probate  courts,  sec.  67, 
pp.  443,  444 


INDEX.  829 

Jurisdiction —  Continued, 

extent  of  jurisdiction  of  courts  of  chancery  in  such  cases,  sec.  67, 

p.  444 
wholly  denied  in  some  cases  where  jirobate  court  exists,  sec.  67,  p. 

444 
other  cases  hold  is  a  part  of  grant  of  general  equity  jurisdiction  by 
constitution,  and  can  not  be  made  exclusive  in  probate  court, 
sec.  67,  p.  445 
may  interpose  where  probate  court  incapable  of  giving  relief,  sec. 

67,  p.  445 
common  law  or  equity  jurisdiction  maybe  conferred  on  probate 
courts,    sec.  67,  pp.  445,  446 
cases  to  the  contrary,  sec.  67,  p.  445 
when  construction  of  will  peculiarly  within  chancery  jurisdiction, 

sec.  67,  pp.  446,  447 
courts  of  equity  no  jurisdiction  to  order  sale  of  legal  title  to  real 

estate  of  infant,  sec.  67,  p.  447 
when  and  to  what  extent  probate  court  held  to  be  court  of  equity, 

sec.  67,  p  447 
in  some  states   have  broad  power  to  deal  with  trusts  and  matters 
of  account,  sec.  67,  pp.  447,  448 
but  must  arise  in  settlement  of  estates,  sec.  67,  p.  448 
court  of  chancery  no  jurisdiction  over  purely  probate  matters  as 
part  of  general  equity  powers,  sec.  67,  p.  448 
formerly  belonged  in  England  to  ecclesiastical  courts,  sec.  67, 

p.  448  . 

and  passes  by  general  grant  of  probate  jurisdiction,  sec.  67,  p. 

448 
grant  of  common  law  and  equity  jurisdiction  does  not  include, 
sec.  67,  pp.  448,  449 
powers  of  equity  and  probate  courts  depend  upon  constitutions 

and  statutes  in  different  states,  sec.  67,  p.  449 
difference  in  extent  of  powers  in  different  states,  sec.  67,  pp.  449, 

450 
general  equity  jurisdiction  in   federal  courts  in  settlement  of  es- 
tates can  not  be  taken  awav  or  limited  by  state  laws,  sec.  67, 
p.  450 
exclusive  jurisdiction  vested  in  probate  court  does  not  affect, 

sec.  67,  p.  450 
nor  that  property  is  being  administered  in  state  court,  sec.  67, 

p.  450 
nor  can    right  to   sue   administrator  or  executor  in,  be   taken 
away,  sec.  67,  p.  451 
extent  of  jurisdiction  of  federal  courts,  sec.  67,  p.  451 
of  probate  depends  upon — 
death  of  owner  of  the  estate, 

and  generally  upon  domicile  of  deceased  at  time  of  death, 
or  presence  of  property  of  deceased  within  jurisdiction,  sec.  67, 
pp.  452,  453 
whether  property  must  have  been  within  jurisdiction  at  time  of 

death,  sec.  67,  p.  452 
general  rules  as  to  j)lacte  where  proceedings  must  be  commenced, 

sec.  67,  pp.  452,  453 
when  court  first  assuming  jurisdiction  has  exclusive,  sec.  67,  p. 

453 
death  of  owner  of  estate,  finding  of,  by  court  does  not  L'ive  juris- 
diction, sec.  67,  p.  453 
if  owner  not  dead,  proceedings  void,  sec.  67,  p.  453 


830  INDEX. 

Jurisdiction — Continued. 

as  to  domicil  and  presence  of  property,  are  questions  of  fact  and 

finding  conclusive,  sec.  67,  p.  453 
but  held  otherwise  in  some  states,  sec.  67,  pp.  45.3,  454 
when  letters  revoked  on  direct  attack,  sec.  67,  p.  454 
jurisdictional  facts  found,  not  void,  sec.  67,  p.  454 
letters  granted  by  interested  judge  void,  sec.  67,  p.  454 
what  petition  in  probate  proceeding  must  show  as  to  jurisdictional 

facts,  sec.  67,  p.  454 
distinction  made  between  superior  and  inferior  courts  in  this  re- 
spect, sec.  67,  p.  454 
effect  where  statute  provides  failure  to  allege  shall   not  be  taken 

advantage  of  except  on  appeal,  sec.  67,  pp.  454,  455 
finding  that  applicant  for  letters  has  necessary  qualifications  con- 
clusive, sec.  67,  p.  455 
letters  granted  to  stranger  before  time  limited  for  application  by 

relatives  held  void,  sec.  67,  p.  455 
court  granting  letters,  jurisdiction  of,  not  necessarily  exclusive  as 

to  all  matters  connected  with  estate,  sec.  67,  p.  455 
petition  for  sale  of  real  estate  may  be  filed  in  court  of  other  county, 

when,  sec.  67,  p.  455 
contest  of  will,  necessity  of  alleging  jurisdictional  facts,  sec.  67, 

pp.  455,  456 
proof  of  facts  obviate  failure  to  allege,  sec.  67,  p.  456 
letters  on  same  estate  may  be  granted  in  different  states,  sec.  67, 

p.  456 
powers  of  respective  administrators,  sec.  67,  p.  455 
grant  of  letters  of  administration  where  will  exists,  how  may  be 

attacked,  sec.  67,  p.  456 
letters  granted  in   one  state  have  no  force  in    another,  sec.   67, 

p.  456 
power  of  administrator  to  sue  in  another  state,  sec.  67,  p.  456 
probate  of  will  conclusive  in  state  where  granted,  sec.  67,  p.  457 
is  proceeding  in  rem  and  binds  all  the  world, sec.  67,  p.  457 
rule  as  to  conclusiveness  at  common  law,  sec.  67,  p.  457 
probate   not  proof  of  execution  of  will  according  to  laws  of  an- 

othsr  state,  sec.  67,  p.  457 
proves  validity  only  so  far  as  affects  property  within  state,  sec.   67, 

p.  457 
whether  probate  court  may  vacate  its  own  order  of  probate,  sec. 

67,  pp.  457,  458 
generally  held  it  may,  sec.  67,  p.  458 
power  to  revoke  incidental  to  jurisdiction   to  grant  letters,  sec. 

67,  p.  458 
when  court  of  chancery  may  set  aside  judgment  of  probate   court, 

sec.  67,  p.  458 
power  of  chancery  to  set  up  lost,  destroyed,  or  suppressed  will, 

sec.  67,  p.  458 
power  generally  denied  on   ground   is  strictly  probate  jurisdic- 
tion, sec.  67,  p.  458 
contest  of  wills,  extent  of  jurisdiction  in  case  of,  sec.  67,  p.  459 
only  question  will  or  no  will,  court  can   not  construe,  sec.   67, 

p.  459 
notice  to  heirs  and  parties  interested  necessary,  sec.  67,  p.  459 
will  can  not  be  granted  before  death  of  testator,  sec.  67,  p.  459 
no  law  authorizing  probate  at  time  of  death  can  not  be  probated 

under  subsequent  statute,  when,  sec.  67,  p.  459 


INDEX.  831 

Jurisdiction — Continued. 

probate  of  will  not  necessary  to  validity  of.  unless  made  so  by 

statute,  sec.  67,  pp.  459,  460 
general  rule  tinding  of  notice  conclusive,  sec.  67,  p.  400 
power  to  appoint  guardians  usually  confined  to  minors,  etc.,  resid- 
j  ing  within  jurisdiction,  sec.  6T,  p.  460 

but  may  be  extended  by  law  to  non-residents,  sec.  67,  p.  460 
I  order  final  distribution  terminates  jurisdiction,  sec.  67,  p  460 

'-  and  is  conclusive  against  collateral  attack,  sec.  67,  p.  460 

i  probate  within  county,  but  not  at  county  seat,  not  void,  sec.  67 

p.  460 
general  rules  as  to  necessity  of  notice  applies  to  probate  proceed- 
ings, sec.  67,  p.  460 
necessary,  though  not  required  by  statute  authorizing  proceed- 
ing, sec.  67,  p.  460 
special  cases  and  proceedings,  sec.  68 
what  are,  sec.  68,  p.  461 

courts  have  not  been  able  to  define,  sec.  68,  p.  462 
or  find  dividing  line   between   and  ordinary  actions,  sec.  68   pp 

462,  463 
no  reason  for  distinction  between  and  actions,  sec.  68,  pp.  461   462 

463 
question   important  because    court    exercising   jurisdiction   over 

special  cases  held  to  be  inferior,  sec.  68,  p.  463 
probate  proceedings  classed  as  special  in  some  codes,  sec.  68,  p.  463 
but  probate  courts  usually  held  not  to  be  inferior,  sec.  68,  p.  463 
strictness  necessary  in  complying  with  statutory  requirements,  sec. 

68,  p.  464 
no  reason  for  distinction  between  and  common  law  proceedings  in 

this  respect,  sec.  68,  p.  464 
and  rule  of  strict  compliance  usually  confined  to  summary  pro- 
ceedings, sec.  68,  p.  464 
finding  of  facts  to  give  jurisdiction  conclusive,  sec.  68,  p.  464 
petition  filed  what  must  show  to  give  jurisdiction,  sec.  68,  p.  465 
rule  with  reference  to  special  proceedings  generally  same  as  in 

case  of  inferior  courts,  sec.  68,  p.  465 
what  are  made  special  by  the  codes,  sec.  68,  p.  465 
courts  hold  many  of  them  not  to  be  special,  sec.  68,  p.  465 
cases  held  not  to  be  enumerated,  sec.  68,  p.  466 
classed  as  in  code  does  not  make  case  special,  sec.  68,  p.  467 
proceedings  held  to  be  special  enumerated,  sec.  68,  pp.  467,  468 
proceedings  by  executors,  etc.,  to  sell  real  estate,  how  classed,  sec. 

68,  p.  468 
presumptions  in  favor  of,  sec.  68,  p.  468 

power  given  legislature  to  confer  jurisdiction  in  special  cases,  ef- 
fect of,  sec.  68,  pp.  468,  469 
what  "special  cases"  held  to  include,  sec.  68,  p.  469 

and  "  special  proceedings,"  sec.  68,  p.  469 
statute  giving  jurisdiction  of  "all  special  cases  not  otherwise  pro- 
vided for,"  effect  of,  sec.  68,  p.  469 
criminal  jurisdiction,  sec.  69 

controlled  bv  express  statutory  and  constitutional   provisions,  sec. 

69,  p.  469 
distinction  between  civil  and  criminal  as  to  what   gives  jurisdic- 
tion, sec.  69,  p.  470 

place  where  crime  committed  determines,  sec.  69,  p,  470 


832  INDEX. 

Jurisdiction — Continued. 

party  in  one  state  may  commit  crime  in  another,  sec.  69,  p.  470 

therefore  party  need  not  be  in  state  where  committed  to  give  juris- 
diction, sec.  69,  p.  470 

accessory  before  fact  in  another  state  can  not  be  punished  in  state 
where  crime  committed,  sec.  69,  p.  470 

answerable  in  state  where  he  acted,  sec.  69,  p.  470 

jurisdiction  is  where  crime  was  completed,  sec.  69,  p.  470 

and  not  where  some  act  constituting  part  of  it  was  committed,  sec. 
69,  p.  470 

different  rule  under  statutes  in  some  states,  sec.  69,  p.  471 

absence  of  statute  jurisdiction  where  crime  consummated,  sec.  69, 
p.  471 

states  may  pass  laws  making  its  citizens  liable  for  acts  done  out  of 
state,  sec.  69,  p.  471 

proceedings  for  apprehending  criminal  out  of  state  jurisdiction 
ancillary  to  that  of  courts  where  offense  committed,  sec.  69,  p. 
471 

how  such  jurisdiction  brought  into  action,  sec.  69,  p.  471 

statute  authorizing  must  be  strictly  pursued,  sec.  69,  p.  471 

jurisdiction  of  state  courts  over  offenses  committed  by  Indians, 
sec.  69,  p.  471 

means  by  which  defendant  is  brought  into  state  does  not  affect 
jurisdiction  to  try  him,  sec.  69,  p.  472 

legality  of  extradition  proceedings  does  not  affect,  sec.  69,  p.  472 

but  treaties  may  limit  jurisdiction,  sec.  69,  p.  472 

extradited  for  one  crime  can  not  be  tried  for  another,  sec.  69,  p. 
472 

extradition  from  foreign  country  must  be  through  federal  govern- 
ment, sec.  69,  p.  472 

federal  court  may  protect  accused  from  trial  in  state  court,  when, 
sec.  69,  p.  472 

brought  to  this  country  by  force  and  not  by  virtue  of  treaty,  fed- 
eral courts  can  not  interfere  with  trial  in  state  court,  sec.  69, 
p.  472 

accused  must  be  before  court,  service  of  process  not  sufficient,  sec. 
69,  p.  473 

actual  presence  sometimes  dispensed  with  by  statute,  sec.  69,  p.  473 

place  where  offense  committed  must  be  alleged  in  indictment,  sec. 
69,  p.  473 

and  where  jurisdiction  of  court  extends  over  part  of  county,  must 
allege  committed  in  that  part,  sec.  69,  p.  473 

otherwise  sometimes  by  statute,  sec.  69,  p.  473 

whether  offense  committed  within  jurisdiction  question  of  fact  for 
jury,  sec.  69,  p.  473 

controverted  by  plea  of  not  guilty,  sec.  69,  p.  473 

and  burden  on  prosecution,  sec.  69,  p.  473 

finding  of  facts  necessary  to  give  jurisdiction  conclusive  on  collat- 
eral attack,  sec.  69,  p.  473 

but  proof  of  venue  necessary  to  sustain  on  appeal,  sec.  69,  pp.  473, 
474 

how  question  ol  may  be  raised,  sec.  69,  p.  474 

where  court  gives  jurisdiction  after  designated  time,  effect  of  tak- 
ing before  time  expires,  sec.  69,  p.  474 

when  authorized  to  issue  warrant  on  evidence  of  guilt,  effect  of 
issuing  without,  sec.  69,  p.  475 

affidavit  expressing  opinion  not  sufficient  evidence,  sec.  69,  p.  475 


I 


INDEX.  833 

Jurisdiction — Continued. 

exceptions  to  rule  that  must  be  tried  in  county  where  offense 
committed,  sec.  69,  p.  475 

crime  of  larceny  and  like  offenses  where  property  stolen,  or  in 
county  where  property  found,  sec.  69>  p.  475 
so  where  property  brought  froni  another  state,  sec.  69,  p.  475 
and  where  offense  committed  partly  in  different  counties,  sec.  G9, 
p.  475 

murder,  usually  where  fatal  blow  was  struck,  although  death  oc- 
curred elsewhere,  sec.  69,  p.  475 
statutes  authorizing  constitutional,  sec.  69,  pp.  475,  471 
so  of  statute  authorizing  trial  where  death  occurred,  wound  in- 
flicted on  high  seas,  sec.  69,  p.  476 

property  taken  into  county  may  be  alleged  to  have  been  stolen 
there,  sec.  69,  p.  476 

asportation  from  one  county  to  another  new  theft,  sec.  69,  p.  476 

different  rule  in  charge  of  burglary,  which  is  local  crime,  sec.  69, 
p.  476 
held  legislature  can  not  authorize  prosecution   of  burglary  in 
another  county,  sec.  69,  p.  476 

effect  of  statute  authorizing  prosecution  in  county  where  acts  or 
effects  of  acts  occur,  sec.  69,  p.  477 

statute  authorizing  prosecution  of  offense  committed   in  another 
state  held  void,  sec.  69,  p.  477 
but  authorities  disagree,  sec.  69,  p.  477 

wound  inflicted  in  one  state  and  death  in  another,  where  jurisdic- 
tion rests,  sec.  69,  p.  477 

law  requiring  trial  in  county  where  crime  committed  rests  upon 
right  to  jury  of  the  neighborhood,  sec.  69,  p.  478 

subject  to  right  to  change  of  venue,  sec.  69,  p.  478 

right  to  trial  by  jury  of  county  can  not  be  taken  away  by  statute, 
sec.  69,  p.  478 

statute  authorizing  change  of  venue  by  district  attorney  without 
defendant's  consent  unconstitutional,  sec.  69,  p.  478 

change  of  venue,  how  court  obtains  jurisdiction,  sec.  69,  p.  479 

when  court  from  which  removed  loses  jurisdiction,  sec.  69,  p.  479 

criminal  action  is  one  at  law,  sec.  69,  p.  479 

and  grant  of  jurisdiction  in  cases  at  law  confers  jurisdiction   of, 
sec.  69,  p.  479 

given  by  constitution  can  not  be  taken  awav  by  statute,  sec.  69,  p. 
479 

but  if  not  made  exclusive,  concurrent  mav  be  given  another  court, 
sec.  69,  p.  479  " 

effect  of  constitution  conferring  on  new  courts  where  jurisdiction 
of  other  courts  already  existing,  sec.  69,  p.  480 

jurisdiction   over  offense  charged  may  convict   of  lesser  offense 
within,  sec.  69,  p.  480 

effect  of  exceeding  jurisdiction  in  fixing  punishment,  sec.   69,  p. 
481 

same  act  may  constitute  offense  against  state  and  federal  govern- 
ment and  be  punishable  by  courts  of  both,  sec.  69,  p.  481 

appeal  confers  no  jurisdiction  where  lower  court  had  none,  sec. 
69,  p.  481 

how  prosecutions  for  crime  may  be  commenced,  sec.  69,  pp.  481, 
482 
not  necesf^arily  by  indictment,  sec.  69,  p.  481 
depends  upon  provisions  of  constitution,  sec.  69,  p.  481 

when  examination  before  magistrate  provided  for,  such  examina- 
tion necessary,  sec.  69,  p.  48:2 


834  INDEX. 

Jurisdiction — Continued. 

held  if  committed  for  one  offense,  district  attorney  may  file  in- 
formation for  anotlier,  sec.  69,  p.  482 

but  correctness  of  the  rule  doubted,  sec.  69,  p.  482 

held,  also  magistrate,  may  commit  for  other  offense  than  one 
charged,  sec.  69,  p.  482 

where  accused  may  elect  in  which  court  he  will  be  tried,  his  elec- 
tion gives  exclusive  jurisdiction,  sec.  69,  p.  483 

demand  for  jury  may  deprive  court  of  jurisdiction,  when,  sec.  69, 
p.  483     _     _ 

where  jurisdiction  depends  upon  whether  offense  "high  and  ag- 
gravated," indictment  must  charge  the  fact,  sec.  69,  p.  483 
maritime  jurisdiction,  sec.  70 

generally  belongs  exclusively  to  federal  courts,  sec.  70,  p.  483 

but  state  courts  not  wholly  without,  sec.  70,  p.  483 

but  not  strictly  speaking  admiralty  jurisdiction,  sec.  70,  p.  484 

confined  to  interior  navigation,  where  no  interstate  or  foreign 
commerce,  sec.  70,  p.  484 

over  such  navigation  federal  courts  have  no  jurisdiction,  sec.  70, 
p.  484 

claims  against  vessels  not  maritime  within  jurisdiction  of  state 
courts,  sec.   70,  p.  484 

liens  provided  by  state  laws  when  enforcible  in  federal  courts, 
sec.  70,  p.  484 

when  enforceable  in  state  courts,  sec.  70,  p.  484 

depends  upon  character  of  contract,  sec.  70,  p.  484 

when  discretionary  with  federal  court  whether  to  enforce  or  not, 
sec.  70,  p.  485 

in  regulation  of  commerce  congress  mav  provide  for  liens,  sec.  70, 
p.  485 

but  if  does  not,  states  may,  sec.  70,  p.  485 

when  states  may  regulate  fisheries,  sec.  70,  p.  485 

states  can  not  by  providing  for  liens  extend  jurisdiction  of  federal 
courts,  sec.  70,  p.  485 

nor  can  courts  decline  to  enforce  because  provided  for  by  state, 
sec.  70,  p.  485 

may  enforce  state  lien  on  domestic  vessel,  though  maritime  law 
would  only  give  on  foreign  vessel,  sec.  70,  p.  485 

but  state  courts  can  not  enforce  lien  on  vessel  engaged  in  foreign 
commerce,  sec.  70,  p.  485 

but  may  against  vessels  navigating  inferior  streams  and  not  en- 
gaged in  foreign  or  interstate  commerce,  sec.  70,  p.  486 

general  rule  that  admiralty  jurisdiction  confined  to  tide  waters  to 
the  ebb  and  flow,  sec.  70,  p.  486 

but  federal  courts  extend  to  navigable  lakes  and  rivers  above  tides 
where  commerce  carried  on  between  different  states  or  with 
foreign  nation,  sec.  70,  p.  486 

common-law  remedy  growing  out  of  maritime  transaction  may  be 
administered  by  state  court,  sec.  70,  p.  486 

fact  that  common-law  remedy  aided  by  lien  does  not  affect  juris- 
diction, sec.  70,  pp.  486,  487 
impeachment,  sec.  71 

jurisdiction  of,  usually  vested  in  political  body,  sec.  70,  p.  487 

of  federal  officer  in  whom  power  vested,  sec.  71,  p.  487 

senate  acquire.s  jurisdiction,  how,  sec.  71,  p.  487 

impeachment  of  officer  does  not  affect  jurisdiction  of  courts  to  try 
him  for  same  offense,  sec.  71,  p.  487 

jurisdiction  of  impeachment  of  state  officers,  sec.  71,  p.  488 


INDEX.  835 

Jurisdiction — Continued. 
contempts,  sec.  72 
jurisdiction  in  cases  of,  does  not  depend  upon  express  law,  sec.  72,  p. 

488 
is  a  part  of  inherent  powers  of  courts,  sec.  72,  p.  488 
can  not  be  taken  away  by  legislature,  sec.  72,  p.  488 

rule  applies  to  constructive  contempts,  sec.  72,  p.  489 
but  legislature  may  limit  and  control,   sec.  72,  p.  490 
power  usually  given  and  provided  for  by  statute,  sec.  72,  p.  490 
power  not  confined  to  courts,  sec.  72,  p.  490 
to  what  extent  legislative  bodies  may  exercise,  sec.  72,  pp.  490,  491' 

as  respects  the  congress  of  the  United  States,  sec.  72,  jj.  491 
jurisdiction  depends  on  character  of  contempt,  sec.  72,  p.  491 
may  be  contempt  at  common  law  or  made  so  by  statute,  sec.  72,  p. 

492 
civil  contempts,  what  are,  sec.  72,  p.  492 
do  not  authorize  imprisonment  for  debt,  sec.  72,  p.  492 
imprisonment  until  debt  paid  is  one  for  debt  and  unlawful,  sec. 

72,  p.  492 
no  showing  or  affidavit  necessary  in  direct  contempt,  sec.  72,  p. 

492 
court  may  proceed  summarily  on  its  own  knowledge,  sec.  72,  p.  492 
in  case  of  constructive,  affidavit  generally  required,  sec.  72,  p.  492 
court  no  jurisdiction  to  act  without,  sec.  72,  p.  492 
must  allege  facts  constituting  contempt,  sec.  72,  p.  493 
return  of  officer  sometimes  sufficient  without  affidavit,  sec.  72,  p. 

493 
hni  prima  facie  case  must  be  so  made  as  to  constitute  part  of  rec- 
ord, sec.  72,  p.  493 
affidavit  on  information  and  belief,  judgment  not  void,  sec.  72,  p. 

493 
held,  jurisdiction  does  not  depend  on  form  of  affidavit,  sec.  72,  p. 
493 
but  not  in  accordance  with  rule  requiring  affidavit,  sec.  72,  p.  493 
effect  of  judgment,  whether  conclusive  and  final  or  not,  sec.  72,  p. 

493 
better  rule  is  that  is  open  to  review  on  appeal,  sec.  72,  pp.  493,  494 
jurisdiction  of  court  or  general  power  to  punish  for,  always  open 

to  inquiry,  sec.  72,  p.  494 
whether  facts  in  particular  case  constitute  contempt,  held  not  ju- 
dicial question,  sec.  72,  p.  495 
but  cases  conflicting,  sec.  72,  p.  495 
when  accused  will  be  discharged  on  habeas  corpus,  sec.  72,  p.  495 
legislative  bodies  acts  not  conclusive,  sec.  72,  p.  493 

because  not  courts,  sec.  72,  pp.  495-496 
power  to  punish  own  members  exclusive  and  not  subject  to  reviev/ 
sec.  72,  p.  496 
extends  to  other  persons,  when,  sec.  72,  p.  496 
as  to  other  persons,  power  not  granted  to  congress,  sec.  72,  p.  496 
committed  in  presence  of  court,  notice  not  necessary,  sec.  72,  p. 
496 
but  opportunity  to  explain  must  be  given,  sec.  72,  p.  496 
facts  recited  in  commitment  conclusive  on  collateral  attack,  sec. 

72,  p.  496 
when  existence  of  jurisdictional  facts  pre'='imed,  sec   72,  p.  496 
finding  of  facts  by  court  conclusive,  sec.  72,  pp.  496,  497 
out  of  presence  of  court  notice  necessary,  sec.  72,  p.  497 
what  notice  required,  sec.  72,  p.  497 


836  INDEX. 

Jurisdiction — Continued. 

requirements  of  statute  may  be  waived,  sec.  72,  p.  497 

what  are  jurisdictional  facts,  sec.  72,  p.  498 

fact  that  may  be  prosecuted  by  indictment  does  not  affect  juris- 
diction, sec.  72,  p.  498 

is  exclusive  in  court  against  which  offense  committed,  sec,  72,  p. 
498 

sole  power  of  federal  courts  derived  from  statutes,  sec.  72,  p.  499 

would  not  be  so  if  statute  did  not  cover  all  inherent  powers,  sec. 
72,  p.  499 

but  statute  effective  to  limit  power,  sec.  72,  p.  499 

whether  power  of  United  States  supreme  court  can  be  limited  by 
statute,  sec.  72,  p.  499 

rule  as  to  territorial  courts,  sec.  72,  p.  499 

and  as  to  inferior  courts,  sec.  72,  pp.  499,  500 

except  as   to   legislative   bodies,  power  confined   to  judges   and 
courts,  sec.  72,  p.  500 

when  town  council  has  power,  sec.  72,  p.  501 

as  to  the  power  of  notaries  public,  sec.  72,  p.  501 

powers  of  courts  greatly  extended,  sec.  72,  p.  501 

that  court  has  jurisdiction  of  cause  does  not  give  it  of  contempt, 
sec.  72,  p.  502 
depends  upon  showing  in  contempt  proceeding,  sec.  72,  p.  502 

distinction  between  civil  and  criminal  contempts,  sec.  72,  p.  502 

court  having  law  and  equity  side,  how  contempt  proceeding  dock- 
eted, sec.  72,  p.  502 

sometimes  held  part  of  original  case,  sec.  72,  p.  503 

no  jurisdiction  to  make  order,  none  to  punish  for  violating  it,  sec. 

72,  p.  503 

failure  to  attend  as  witness  before  notary,  how  punished,  sec.  72, 

p.  503 
power  to  strike  out  pleading,  what  must  be  shown,  sec.  72,  p.  504 
where  offense  in  presence  of  court  must  proceed  without  delay, 

sec.  72,  p.  504 
final  judgment  terminates  jurisdiction,  sec.  72,  p.  504 
divorce,  sec.  73 

power  to  grant  to  whom  belongs,  sec.  73,  p.  504 

is  judicial  power  and  belongs  to  courts,  sec.  73,  p.  504 

special  statute  authorizing,  when  unconstitutional,  sec.  73,  p.  504 

formerly  vested  in  ecclesiastical  courts,  sec.  73,  p.  505 

but  now  in  supreme  court,  sec.  73,  p.  505 

in  this  country  given  to  different  courts,  sec.  73,  p.  505 

how  exercised  in  this  country,  sec.  73,  p,  505 

is  wholly  statutory,  sec.  73,  p.  505 

grant  of  common  law  and  equity  jurisdiction  does  not  confer,  sec. 

73,  p.  505 

cases  holding  that  jurisdiction  is  equitable,  sec.  73,  p.  506 

but  not  so  as  to  granting  of  divorces,  sec.  73,  p.  506 

matters  connected  with  are,  sec.  73,  p.  506 

action  for,  civil  action  under  codes,  sec.  73,  p.  506 

and  grant  of  jurisdiction  in  "civil  cases  both  at  law  and  in  equity" 

confers,  sec.  73,  p.  506 
what  included  in  jurisdiction,  sec.  73,  p.  506 

granting  divorces, 

allowance  of  alimony, 

property  rights, 

custody  and  maintenance  of  children,  sec.  73,  p.  506 
three  latter  incidental  to  granting  divorces,  sec.  73,  p.  506 


INDEX.  837 

Jurisdiction — Continued. 

but  not  necessarily  dependent  upon  it,  sec.  73,  p.  506 
not  so  in  all  of  the  states,  sec.  73,  p.  50fi 
to  authorize  disposition  of  property,  issue  as  to  must  be  raised  by 

pleadings,  sec.  73,  p.  507 
means  of  acquiring  jurisdiction  over  divorce,  and   of  incidental 

matters,  different,  sec.  73,  p.  507 
povrer  to  grant  divorce  ^iSecis  status,  and  is  not  personal  action,  sec. 

73,  p.  507 
same  as  action  in  rem,  although  erroneously  held  to  be  action  on 

contract,  sec.  73,  p.  507 
personal  service  not  necessary,  sec.  73,  p.  507 
but  otherwise  as  to  alimony,  sec.  73,  p.  507 

for  alimony,  can  not  be  rendered  against  non-resident  on  construc- 
tive service,  sec.  73,  p.  507 
but  state  may  authorize  against  its  own  citizens,  sec.  73,  pp.  507, 

508 
law  of  domicil  controls  as  to  jurisdiction,  sec.  73,  p.  508 
when  and  why  decrees  respected  in  other  states,  sec.  73,  p.  508 
not  universally  respected,  sec.  73,  p.  509 
some  states  hold  decree  on  constructive  service  a  nullity,  sec.  73 

.  p.  509 
extent  of  power  to  grant  in  different  states,  sec.  73,  pp.  509,  510 
when  held  not  to  have  extraterritorial  effect,  sec.  73,  pp.  509-511 
how  far  decree  affects  property  out  of  state,  sec.  73,  p.  511 
doctrine  that  decree  binding  as  to  one  party  and  not  the  other, 

anomalous,  sec.  73,  p.  512 
decree  for  custody  of  children  same  as  for  divorce,  as  to  validity, 

sec.  73,  p.  512 
only  binding  while  children  within  state,  sec.  73,  p.  512 
domicil  of  wife  not  domicil  of  husband  for  purposes  of,  sec.  73 

p.  512 
actual  residence  controls,  sec.  73,  p.  512 
neither  party  resident  of  state,  decree  void,  sec.  73,  p.  512 
generally,  residence  of  plaintiff  gives  jurisdiction,  sec.  73,  pp.  512, 

513 
wife  may  acquire  residence  distinct  from  husband,  sec.  73,  p.  513 
must  be  actual  residence,  sec.  73,  p.  513 
non-resident  can  not  sue  though  defendant  a  resident,  sec.  73,  p. 

513 
residence  must  be  bona  fide,  sec.  73,  p.  514 
what  will  constitute  sufficient  residence,  sec.  73,  p.  514 
allegation  and  proof  of  necessary,  sec.  73,  p.  514 
admission  of  party  will  not  supply,  sec.  73,  p.  514 
how  jurisdictional  facts  must  appear,  sec.  73,  p.  514 
question  of  residence  one  of  fact,  sec.  73,  p.  514 
finding  of  prima  facie  evidence  against  collateral  attack,  sec.  73,  p. 

514 
whether  conclusive  or  not  authorities  not  agreed,  sec.  73,  p.  515 
decrees  sometimes  held  to  be  final  on  grounds  of  public  policy,  sec. 

73,  p.  515 
on  grounds  of  public  policy,  no  appeal  allowed  in  some  states,  sec. 

73,  p.  515 
finding  as  to  residence  will  not  be  inquired  into  collaterally,  sec. 

73,  p.  515 
decree  rendered  against  non-resident  on  constructive  notice  may 

be  attacked  for  fraud,  sec  73,  p.  515 


838  INDEX. 

Jurisdiction —  Continued. 

in  some  states  residence  not  only  test  of  jurisdiction,  sec.  73,  p.  516 
place  of  commission  of  offense  is  one,  sec.  73,  p.  516 
and  parties  must  in  some  states  have  lived  together  within  the 
state,  sec.  73,  p.  516 
federal  courts  have  no  jurisdiction  of,  within  the  states,  sec.  37,  p. 
516 
but  may  enforce  decree  of  state  court  for  alimony,  sec.  73,  p.  516 
orders  for  alimony  or  for  custody  of  children  subject  to  modifica- 
tion, sec.  73,  p.  516 
even  after  final  decree  and  after  term,  sec.  73,  p.  516 
petition  for  alimony,  when  no  notice  necessary,  sec.  73,  pp.  516,  517 
power  to  grant  or  modify  order  for,  not  suspended  by  appeal, 
sec.  73,  p.  517 
question  of  jurisdiction  as  affected  by  suflBciency  of  affidavit  for 

publication,  sec.  73,  p.  517 
presumed  that  sufficient  affidavit  made,  when,  sec.  73,  p.  517 
recitals  in  record  presumed  to  be  correct,  sec.  73,  p.  517 
when  affidavit  can  not  be  made  until  after  return  day  of  summons, 

sec.  73,  p.  517 
defective  service  waived  by  appearance,  sec.  73,  p.  518 
what  required  in  addition  to  publication,  sec.  73,  p.  518 
personal  service  necessary  against  resident  defendant,  sec.  73,  p. 
518 
attachment,  sec.  74 
defined,  sec.  74,  p.  518 
not  a  common  law  remedy,  sec.  74,  p.  518 
originated  in  custom  of  foreign  attachment  in  London,  sec.  74,  p. 

518 
at  present  day  remedy  entirely  statutory,  sec.  74,  p.  518 
in  nature  of  but  not  strictly  proceeding  in  rem,  sec.  74,  p.  518 
seizure  of  property  alone  not  sufficient  to  authorize  court  to  pro- 
ceed, sec.  74,  p.  518 
notice  also  necessary,  sec.  74,  p.  518 
in  this  differs  from  custom  of  London,  sec.  74,  p.  519 
no  part  of  equity  powers  of  court  of  chancery,  sec.  74,  p.  519 
but  conferred  upon  such  courts  by  statute,  sec.  74,  p.  519 
remedy  is  incidental  to  recovery  of  judgment  in  main  action,  sec. 

^  74,  p.  519 
is  denominated  a  provisional  remedy,  sec.  74,  p.  519 
if  main  action  fails  attachment  falls,  sec.  74,  p.  519 
where  defendant  non-resident,  not  personally  served,  attachment 

fails,  whole  case  at  an  end,  sec.  74,  p.  519 
defendant  non-resident,  and  constructive  service,  proceeding  one 
in  rem,  sec.  74,  p.  519 
and  property  attached  alone  subject  to  judgment,  sec.  74,  p.  519 
in  such  case  attachment  upholds  main  action,  sec.  74,  p.  520 
attachment  proceeding,  how  far  independent  of  main  action,  sec. 

74,  p.  520 
non-resident  creditor  may  have  attachment,  sec.  74,  p.  520 
proceeding  extraordinary  and  limited  by  statute,  sec.  74,  p.  520 
and  confined  strictly  within  limits  by  courts,  sec.  74,  p.  520 
how  strictly  statutes  must  be  complied  with,  sec.  74,  p.  520 
requirements  differ  in  different  states,  sec.  74,  p.  520 
when  may  issue,  sec.  74,  pp.  521,  523 

general  grounds  and  showing  upon  which  allowed,  sec.  74,  pp.  520, 
521 


INDEX.  839 

Jurisdiction — Continued. 

1.  an  action  in  which  an  attachment  is  allowed  must  be  commenced  and 

pending,  sec.  74,  p.  521 
what  kinds  of  actions  may  be  aided  by,  sec.  74,  p.  522 
generally  confined  to  actions  on  contract,  sec.  74,  p.  522 
includes  actions  for  unliquidated  damages,  sec.  74,  p.  522 
but  not  so  in  some  states,  sec.  74,  p.  522 
sometimes  where  debt  was  fraudulently  contracted,  sec.   74,  p. 

522 
and  for  damages  for  torts  in  some  states,  sec.  74,  p.  523 
what  is  action  on  contract,  sec.  74,  p.  523 
commencement  before  time  allowed,  effect  of,  sec.    74,  p.  523 

2.  grounds  upon  ivhich  may  issue,  and  affidavit  necessary  to  sustain,  sec. 

74,  p.  523 
grounds  of,  generally,  sec.  74,  pp.  523,  524 

what  affidavit  must  show,  and  how  stated,  sec.  74,  pp.  524,  525 
affidavit  is  foundation  and  support  of  jurisdiction,  sec.  74,  p.  526 
failure  to  state  essential  fact,  proceeding  void,  sec.  74,  p.  526 
but  in  some  states  amendments  allowed,  sec.  74,  p.  526 
defect  in,  distinguished  from  failure  to  make,  sec.  74,  p.  526 
complaint  and  affidavit  may  be  combined,  when,  sec.  74,  p.  526 
same  affidavit  may  serve  for  attachment  and  publication,  sec.  74, 

p.  527 
whether  seizure  of  property  without  notice  gives  jurisdiction, 

sec.  74,  pp.  527,  528 
what  proceedings  are  jurisdictional,  sec.  74,  p.  528 
difiFerent  parts  and  elements  of  affidavit — 

a.  by  whom  may  be  made,  sec.  74,  pp.  528,  529 
statutes  differ,  sec.  74,  p.  528 

under  some,  must  be  made  by  plaintiflF,  sec.  74,  p.  528 
others  may  be  by  attorney  or  agent,  see.  74,  p.  528 
attorney  must  be  authorized  as  such  at  time,  sec.  74,  p.  528 
subsequent  ratification  insufficient,   sec.  74,  p.  528 
under  some  statutes  may  be  made  by  any  credible  person,  sec. 
74,  p  529 

b.  averment  of  cause  of  action  and  amount  due,  sec.  74,  pp.  529,  530 
must  show  cause  of  action  in  which  attachment  allowed,  sec.  74, 

p.  529 

amount  due  must  be  alleged,  sec.  74,  p.  529 

how  amount  due  may  be  shown,  sec.  74,  p.  529 

variance  between  complaint  and  affidavit  as  to  amount  due,  ef- 
fect of,  sec.  74,  p.  529 

contract  sued  on  need  not  show  amount  due  on  face,  sec.  74,  p. 
529 

but  must  be  such  that  amount  can  be  ascertained,  sec.  74,  p.  529 

where  parties  may  be  sued  jointly,  but  liable  separately,  for  dif- 
ferent amounts,  amount  due  from  each  must  be  shown,  sec. 
74,  pp,  529,  530 

where  required  to  show  amount  due  over  counterclahii,  neces- 
sary averments,  sec.  74,  p.  530 

c.  presence  of  property  within  jurisdiction  of  court,    sec.   74,    pp.   530, 

531 
affidavit  must  show  in  some  of  the  states,  sec.  74,  p.  530 
not  making  of  affidavit,  but  actual  presence  of  property,  that 

gives  jurisdiction,  sec.  74,  p.  5.'J0 
therefore  fact  if  alleged  may  be  controverted,  sec,  74,  p.  530 


840  INDEX. 

Jurisdiction — Continued. 

allegation  not  always  required,  sec.  74,  p.  530 
but  lact  must  exist,  when,  sec.  74,  pp.  530,  531 

d.  noji-residence  of  the  defendant,  sec.  74,  p.  431 
necessary  to  be  shown  in  some  states,  sec.  74,  p.  531 
against  joint  debtors  must  show  as  to  both,  sec.  74,  p.  531 

e.  absconding  debtors,  sec.  74,  p.  531 
concealment  ground  of  attachment,  sec.  74,  p.  531 

f.  fraudulent  disposition  or  removal  of  property,  sec,  74,  p.  531 
usually  allowed  to  be  made  on  information  and  belief,  sec.  74,  p. 

531 

but  grounds  of  belief  sometimes  required  to  be  stated,  sec.  74, 
p.  531 

que.stion  one  of  fact  to  be  determined  on  hearing,  sec.  74,  p.  531 

must  appear  property  subject  to  execution,  when,  sec.  74,  pp531, 
532 

whether  necessary  to  aver  or  not,  property  must  in  fact  be  sub- 
ject to  execution,  sec.  74,  p.  532 

g.  conceahnent  to  avoid  service  of  process,  sec.  74,  p.  532 
intention  material,  sec.  74,  p.  532 

therefore  must  show  concealment  with  intent  to  avoid  service, 

sec.  74,  p.  532 
but  intent  held  not  material  in  some  states,  sec.  74,  p.  532 
h.  debt  fraudulently  incurred,  sec.  74,  p.  532 

fraud  must  relate  to  time  of  making  contract,  sec.  74,  p.  532 
and  must  have  been  perpetrated  with  intent  to  procure  it,  sec. 

74,  p.  532 
what  constitutes  such  fraud,  sec.  74,  p.  532 
can  not  be  maintained  for  several  claims,  part  not  fraudulent, 

sec.  74,  p.  533 
showing  of  negligence  not  sufficient,  sec.  74,  p.  533 
but  of  embezzlement  is,  sec.  74,  p.  533 
i.  obligations  criminally  incurred,  sec.  74,  p.  533 
by  commission  of  a  crime  is,  sec.  74,  p.  533 
j.  where  claim  sued  upon  is  not  due,  sec.  74,  p.  533 

only  allowed  on  showing  that  property  about  to  be  disposed  of 

or  removed,  sec.  74,  p.  533 
specific  grounds  must  be  shown  by  affidavit,  sec.  74,  p.  533 
non-residence  alone  not  sufficient,  sec.  74,  p.  533 
order  of  court  authorizing  issuance  of  writ,  when  necessary,  sec. 
74,  p.  533 
issued  by  clerk,  without  order,  void,  sec.  74,  p.  533 
k.  sources  of  informaticn  as  to  facts  averred,  sec.  74,  p.  533 

when   facts  and   circumstances   showing   knowledge   must    be 
stated,  sec.  74,  p.  534 
1.  additional  averments  when  made  by  attorney  or  agent,  sec.  74,  p.  534 
absence  of  plaintiflf,  sec.  74,  p.  534 
must  be  sustained  by  proof,  sec.  74,  p.  534 
must  show  knowledge  of  facts,  sec.  74,  jd.  534 
3.  the  bond  or  undertaking,  sec.  74,  p.  534 

giving  of,  necessary  to  u^jhold  attachment,  sec.  74,  p.  534 
but  not  required  in  all  cases,  sec  74,  p.  534 
failure  to  give  held  irregularity  merely,  sec.  74,  p.  535 
and  does  not  affect  jurisdiction,  sec.  74,  p.  535 
held  otherwise  in  some  states,  sec.  74,  p.  535 
by  whom  must  be  executed,  sec.  74,  p.  535 


INDEX.  841 

Jurisdiction —  Continued. 

must  comply  with  statute,  sec.  74,  p.  535 

4.  the  writ  of  attachment,  sec.  74,  p.  535 

in  order  to  apply  jurisdiction  to  particular  property  must  issue, 

sec.  74,  p.  535 
generally  issued  as  of  course  by  clerk,  sec.  74,  p.  536 
when  must  issue,  sec.  74,  p.  536 
what  must  contain,  sec.  74,  p.  530 

statutes  as  to  what  shall  contain  mandatory,  sec.  74,  p.  536 
can  not,  without  statutory  authority,  be  amended,  sec.  74,  p.  536 

5.  levy  of  ivrit  and  proof  of  its  service,  sec.  74,  p.  536 

levy  of,  necessary  to  attach  jurisdiction  to  projierty,  sec.  74,  pp. 

536,  537 
from  that  time  property  made  subject  to  judgment,  if  rendered, 

sec.  74,  p.  536 
levy  vests  jurisdiction  of  subject-matter,  sec.  74,  p.  537 
held  in  some  cases  question  of  levy  not  jurisdictional,  sec.  74.  p. 

537 
return  of  officer  on,  what  must  show,  sec.  74,  p.  537 
where   no  personal   service,  jurisdiction    limited    to    property 

levied  on,  sec.  74,  p.  537 
possession  must  be  maintained,  sec.  74,  p.  537 
levy  and  notice  to  non-resident  both  necessary,  sec.  74,  pp.  537, 

538 
when  writ  must  be  served,  sec.  74,  p.  5.^>S 
time  for  service  limited,  effect  of  concealment  of  defendant,  sec. 

74,  p.  538 
no  personal  service,  conditions  subsequent  to  levy  jurisdictional, 

sec.  74,  p.  538 
failure  to  comply  with  renders  judsment  bv  default  void,  sec. 

74,  p.  538 

6.  service  of  process  on  defendant,  sec.  74,  p.  538 

necessary  to  authorize  judgment  and  disposition  of  property, 
sec.  74,  p.  538 

personal  service  on  resident  defendant  generally  required,  sec. 
74,  p.  539 

certain  time  given  to  obtain  personal  service,  constructive  be- 
fore, void,  sec.  74,  p.  539 

federal  courts,  on  foreign  attachment  personal  service  neces- 
sary, sec.  74,  p.  539 

non-resident,  constructive  service  authorized,  sec.  74,  p.  539 

how  constructive  notice  given,  sec.  74,  p.  539 

if  time  for  service  limited  by  statute,  service  after,  void,  sec.  74, 
p.  539 

difference  in  effect  of  personal  and  constructive  service,  sec.  74, 
p.  539 

no  personal  judgment  on  constructive,  sec.  74,  pp.  539,  540 

only  authorized  sale  of  property  attached,  sec.  74,  p.  540 

failure  to  give  notice,  effect  of,  sec.  74,  p.  540 

discrepancy  in  decisions  of  federal  and  state  courts  as  to  neces- 
sity of  notice,  sec.  74,  p.  540 

effect  of  insufficient  notice,  sec.  74,  p.  540 

difference  between  no  service  and  defective  service,  sec.  74,  p. 
541 

writ  of  attachment  as  summons,  effect  of  quashing,  sec.  74,  p.  541 

when  personal  service  of  writ  of  attachment  necessary,  sec.  74, 
p.  541 


842  INDEX. 

Jurisdiction —  ConUnucd. 

failure  to  serve  summons  in  time,  effect  on  attachment,  sec.  74, 
p.  541 

7.  proof  of  service  of  process,  sec.  74,  p.  541 

jurisdiction  over  does  not  depend  upon,  but  upon  service,   sec. 

74,  p.  541 
how  proof  must  be  made,  sec.  74,  p.  541 

8.  waiver  of  defects  in  proceedings,  sec.  74,  p.  542 
appearance  waived,  sec.  74,  p.  542 

objecting  on  certain  grounds,  oliiers  waived,  sec.  74,  p.  542 
appearance  in  main  action,  effect  on  attachment,  sec.  74,  pp.  542, 

543 
giving  delivery  bond,  effect  of  as  waiver,  sec.  74,  p.  544 
and  agreement  that  property  may  be  sold,  sec.  74,  p.  544 
special  appearance,  effect  of,  sec.  74,  p.  544 

9.  amendments,  sec.  74,  p.  544 

of  attachment  proceedings,  including  affidavit  authorized  by 

statute,  sec.  74,  p.  544 
what  amendments  allowed,  sec.  74,  p.  544 
filing  of  new  affidavit  or  bond  permitted,  sec.  74,  p.  544 
federal  courts  liberal  in  allowing,  sec.  74,  p.  544 
must  be  something  to  amend,  sec.  74,  pp.  544,  545 
void  affidavit  can  not  be  amended,  sec.  74,  p.  545 
can  not  add  new  cause  of  attachment,  sec.  74,  p.  545 
return  of  officer  may  be  amended,  sec.  74,  p.  545 

10.  how  sufficiency  of  proceedings  may  be  tested,  sec.  74,  p.  545 
different  modes  of  testing,  sec.  74,  pp.  545,  546 

objection  must  be  made  before  final  judgment,  sec.  74,  p.  546 
reason  for  the  rule,  sec.  74,  p.  546 

time  of  motion  to  set  aside  sometimes  limited  bv  statute,  sec. 
74,  p.  547 

11.  presumptions  in  favor  of  jurisdiction  in  attachment,  sec.  74,  p.  547 

garnishment,  sec.  75,  p.  .547 

principles  affecting  similar  to  attachment,  sec.  75,  p.  547 

object  of  proceeding,  sec.  75,  p.  547 

differs  from  attachment  in  that  seizure  of  property  not  necessary, 
sec.  75,  pp.  547,  548 

is  ancillary  to  main  action,  sec.  75,  p.  548 

in  what  respects  same  as  attachment  as  to  what  necessary  to  up- 
hold it,  sec.  75,  p.  548 

jurisdiction  may  rest  upon  garnishment  proceeding,  sec.  75,  p.  548 

question  of  debt  between  garnishee  and  defendant  treated  as  in- 
dependent, sec.  75,  p.  549 

as  to  affidavit  general  principles  same  as  an  attachment,  sec.  75,  p. 
549 

same  as  to  bond,  sec.  75,  p.  549 

who  may  object  to  sufficiency  of  bond,  sec.  75,  p.  549 

as  to  necessity  of  notice  in  main  action,  sec.  75,  p.  550 

in  lieu  of  seizure  of  property  notice  to  garnishee  required,  sec.  75, 
p.  550 

notice  in  nature  of  actual  levy,  sec.  75,  p.  550 

how  garnishee  bound  by  notice,  sec.  75,  p.  550 

from  time  of  notice  property  in  custody  of  court,  sec.  75,  p.  550 

may  be  in  form  of  summons,  sec.  75,  p.  550 

how  doctrine  of  waiver  of  notice  differs  from  rule  in  attachment, 
sec.  75,  p.  550 


INDEX.  843 

Jurisdiction — Continued. 

garnishee  not  a  party  and  can  not  waive  notice,  sec.  75,  pp.  550, 

551 
nor  the  making  of  affidavit,    sec.  75,  p.  551 
may  waive  defects  affecting  himself,  sec.  75,  p.  55! 
how  far  defendant  may  waive  notice  or  defects,  sec.  75,  p.  551 
nothing  peculiar  about  proof  of  service,  sec.  75,  p.  551 
jurisdiction  as  to  amount  what  controls,  sec.  75,  p.  551 
where  proceeding  must  be  brought,  sec.  75,  pp.  551,  552 

against  foreign  corporations,  sec.  75,  pp.  551,  55'J 
non-resident  garnishee  not  subject  to  constructive  notice,  sec.  75,' 

p.  552 
non-residence  of  defendant  immaterial  if  property  found  in  hands 

of  garnishee,  sec.  75,  p.  552 
must  be  property  within  jurisdiction  subject  to  execution,  sec.  75, 

p.  552 
on  what  cause  of  action  garnishment  will  lie,  sec.  75,  p.  553 
how  far  garnishee  interested  in  question  of  jurisdiction,  sec.  75,  p. 

553 
how  far  may  question  judgment  in  main  action,  sec.  75,  p.  553 
sales  of  real  estate,  sec.  76,  p.  554 
confusion  in  decided  cases  and  causes  therefor,  sec.  76,  p.  554 
whether  courts  exercising  jurisdiction  over,  are  superior  or  in- 
ferior, sec.  76,  pp.  554,  555 
presumptions,  how  far  proceedings  for  upheld  by,  sec.  76,  pp.  554, 

555 
how  facts  necessary  to  uphold  may  be  shown,  sec.  76,  p.  555 
upon  what  the  jurisdiction  depends,  sec.  76,  pp.  555,  556 
whether  legality  of  appointment  of  administrator  or  guardian  can 

be  attacked  colleterally  in,  sec.  76,  p.  556 
rule  that  it  can  not,  sustained  by  weight  of  authority,  sec.  76,  p. 

556 
record  showing  want  of  jurisdiction  to  appoint,  effect  of,  sec.  76,  p. 

556 
record-silent  jurisdiction  to  appoint  presumed,  sec.  76,  p.  557 
where  question  goes  to  general  power  of  court,  and  not  to  juris- 
diction over  particular  estate,  different  rule  prevails,  sec.  76. 

p.  557 
doctrine  of  federal  courts  as  to  right  of  another  court  to  inquire 

into  jurisdiction,  sec.  76,  p.  557 
what  necessary  to  give  court  jurisdiction  to  order  sale,  sec.  76,  p. 

557 
not  sufficient  to  show  jurisdiction  over  estate,  sec.  76,  p.  557 
application  to  sell   separate  proceeding  and  jurisdiction  of  must 

exist,  sec.  67,  p.  557 
power  generally  depends  upon  statute,  sec.  76,  p.  557 
but  sometimes  held  to  exist  in  court  of  equity  without  statute,  sec, 

76,  pp.  557,  558 
as  a  rule,  courts  of  equity  have  no  power  to  order  sale  of  legal  title, 

sec.  76,  p.  558 
but  may  set  aside  sale,  when,  sec.  76,  p.  558 
guardian  can  not  sell  without  order  of  court,  sec.  76,  p.  558 
petition  for  sale  foundation    of  jurisdiction,  sec.  76,  p.  558 
facts  upon  which  sale  authorized,  jurisdictional,  sec.  76,  p.  558 
and  must  be  alleged  in  petition,  sec.  76,  p.  558 
substantial  compliance  with  statute  sufficient,  sec.  76,  p.  558 
what  are  the  usual  ground^  for  sale,  sec.  76,  p.  558 
defects  or  errors  do  not  affect  jurisdiction,  sec.  76,  p.  559 


844  INDEX. 

Jurisdiction — Continued. 

one  good  cause  suflBcient,  although  other  causes  not  authorizing 

stated,  sec.  76,  p.  559 
not  existence  of  facts,  but  allegation  of  them  gives  jurisdiction, 

sec.  76,  p.  559 
whether  allegations  true  or  false,  does  not  affect,  sec.  76,  p.  559 
but  not  where  record  shows  required  proof  was  not  made,  sec.  76, 

pp.  559,  560 
if  it  appears  court  determined  jurisdictional  facts,  findings  con- 
clusive, sec.  76,  p.  560 
any  evidence,  sufficiency  of  not  jurisdictional,  sec.  67,  p.  560 
order  of  sale  is  adjudication  of  all  facts  necessary  to  give  jurisdic- 
tion, sec.  76,  p.  560 
but  if  real  estate  goes  to  executor  only  if  debts  exist,  if  no  debts 

proceeding  void,  sec.  76,  p.  560 
some  of  cases  hold  finding  of  debts  only  privni  facie  evidence  of, 

sec.  76,  pp.  560 
to  make  finding  conclusive,  proceeding  must  be  within  general 

jurisdiction,  sec.  76,  p.  561 
courts  liberal  in  upholding,  sec.  67,  p.  561 

record  silent,  filing  of  sufficient  petition  presumed,  sec.  76,  p.  561 
petition  must  show  proceeding  brought  in  proper  county,  sec.  76, 

p.  561 
where  must  be  commenced,  sec.  76,  pp.  561,  562 
must  conform  to  laws  of  state  where  land  situated,  sec.  76,  p.  562 
but  not  necessary  ward,  or  guardian,  or  executor  reside  there,  sec. 

76,  p.  562 
ancillary  proceedings  by  non-residents,  sec.  76,  p.  562 
minor  non-resident  court  may  appoint  guardian  over  property,  sec. 

76,  p.  562 
order  for  sale  of  real  estate  in  another  state  void,  sec.  76,  pp.  562, 

568 
court  when  may  compel  non-resident  to  convey,  sec.  76,  p.  562 
decree  when  can  not  operate  beyond  jurisdiction,  sec.  76,  p.  562 
some  cases  hold  strict  compliance  with  statute  necessary,  sec.  76, 

pp.  562,  563 
but  substantial  compliance  sufficient,  sec.  76,  p.  562 
notice  necessary,  sec.  76,  p.  563 
petition  gives  jurisdiction  of  subject-matter,  notice  of  the  person, 

sec.  76,  p.  563 
held  sale  by  guardian  no  notice  to  ward  necessary  unless  required 

by  statute,  sec.  76,  p.  563 
but  authorities  the  other  way,  sec.  76,  pp.  563,  564 
other  statutory  conditions  must  be  complied  with,  sec.  76,  p.  564 
that  have  been  complied  with  need  not  appear  from  record,  sec. 

76,  p.  564 
whether  ward  necessary  party  to  proceeding  by  guardian,  sec.  76, 

p.  564 
authorities  conflicting,  sec.  76,  p.  564 
if  necessary  party  must  have  notice,  sec.  76,  p.  564 
whether  heir   necessary  party  to  proceeding  by  executor  or  ad- 
ministrator, sec.  76,  pp.  564,  565 
depends  upon  requirement  of  statute,  sec.  76,  p.  565 
distinction  between  sales  by  guardians  and  executors  in  this  re- 
spect, sec.  76,  p.  565 
personal  service  of  notice  not  necessary,  sec.  76,  p.  565 
general  notice  to  all  persons  usually  sufficient,  sec.  76,  pp.  565,  566 


INDEX.  845 

Jurisdiction —  Continued. 

death  of  owner  when  does  not  deprive  court  of  jurisdiction,  sec. 

76,  p.  566 
rule  as  to  sufficiency  of  notice,  sec.  76,  p.  566 
failure  of  guardian  ad  litem  to  answer,  etfect  of,  sec.  76,  p.  566 
failure  to  appoint  guardian  ad  litem,  effect  of,  sec.  76,  p.  566 
failure  to  notify  guardian  ad  litem  where  ward  served,  effect  of,  sec. 

76,  pp.  566,  567 

appointment   of   guardian    ad  litem   gives    no   jurisdiction   where 

minor  not  notified,  sec.  76,  p.  567 
minor  notified,  guardian  appointed,  proceeding  binding,  sec.  76,  p. 

567 
subsequent  reversal  of  order,  effect  on  purchaser,  sec.  76,  p.  567 
notice  presumed,  sec.  76,  p.  567 
but  limited  in  some  cases  to  persons  made  parties  to  tlie  record, 

sec.  76,  p.  567 
recitals  in  record  as  to  notice,  effect  of,  sec.  76,  pp.  567,  568 
jurisdiction  appearing  from  record,  purchaser  need  not  look  be- 
yond, sec.  76,  p.  568 
usually  held  record  imports  verity,  sec.  76,  p.  568 
cases  the  other  way,  sec.  76,  p.  568 
confirmation  of  sale,  effect  of,  sec.  76,  pp.  568,  569 
proceedings  by  creditor  for  sale  of  real  estate,  principles  affecting, 

sec.  76,  p.  569 
additional  bond  for  sale,  effect  of  failure  to  give,  sec.  76,  p.  569 
defect  in  original  bond  does  not  affect  jurisdiction,  sec.  76,  p.  570 
proceedings  may  be  removed  to  federal  court,  sec.  76,  p.  570 
whether  legislature  may  order  sale  without  intervention  of  court, 

sec.  76,  pp.  570,  571 
can  not  where  no  fiduciary  relation  on  part  of  one  authorized  to 

sell,  sec.  76,  p.  571 
sale.s  in  partition  proceedings,  sec.  76,  p.  572 
arbitration,  sec.  77 
defined,  sec.  77,  p.  57L; 

two  kinds,  common  law  and  statutory,  sec.  77,  p.  572 
common  law,  submission  may  be  by  parol,  sec.  77,  p.  572 
statutory,  must  be  in  writing,  sec.  77,  p.  572 
common  law,  stands  upon  decision  of  arbitrators,  sec.  77,  p.  572 
statutory  award  usually  required  to  be  reported  to  and  confirmed 

by  some  court,  sec.  77,  p.  573 
no  particular  form  of  submission  necessary  in  former,  sec.  77,  p. 

573 
latter  must  conform  to  statute,  sec.  77,  p.  573 
when  defective  statutory  may  be  upheld  as  common  law,  sec.  77, 

p.  573 
subject  involves  powers  of  arbitrators,  sec.  77,  p.  573 
and  effect   of   submission   of  pending  actions  on  jurisdiction  of 

court  over,  sec.  77,  p.  573 
also,  in  statutory,  of  power  of  court  to  confirm,  sec.  77,  p.  573 
submission  is  measure  and  limitation  of  powers  of  arbitrators,  sec. 

77,  p.  574 

and  this  is  true  of  submission  of  matters  in  court,  sec.  77,  p.  574 
but  subject  to  right  of  contestants  to  submit  under  statute,  sec.  77, 

p.  574 
matters  in  court,  all  parties  must  consent,  sec.  77,  p.  574 
applies  to  statutory,  sec.  77,  p.  574 
parties  entitled  to  notice,  sec.  77,  j).  574 
arbitrators  must  meet  at  time  named  in  submission,  sec.  77,  p.  574 


846  INDEX. 

Jurisdiction — Continued. 

parties  must  have  opportunity  to  be  present,  sec.  77,  p.  574 

notice,  how  waived,  sec.  77,  pp.  574,  575 

arbitrators  limited  as  to  time  by  submission,  sec.  77,  p.  575 

award  after  time  inoperative,  sec.  77,  p.  575 

and  returned  to  court  too  late,  court  can  not  confirm,   sec.  77,  p. 

575 
failure  to  meet  at  time  appointed,  effect  of,  sec.  77,  p.  575 
powers  expire  with  making  award,  sec.  77,  p.  575 
can  not  alter  or  change  award,  sec.  77,  p.  575 
or  make  a  new  one  where  first  is  void,  sec.  77,  p.  575 
attempt  to  change,  effect  of,  sec.  77,  p.  575 
statute  requiring  submission  to  fix  time  of  award,  effect  of,  sec.  77, 

pp.  575,  576 
power  to  appoint  umpire,  sec.  77,  p.  576 
award,  when  may  be  in  parol,  sec.  77,  p.  576 
statutory  must  conform  to  statute,  sec.  77,  p.  576 
award  must  cover  whole  subject-matter  submitted,  sec.  77,  p.  576 
what  must  be  shown  to  impeach  for  not  including  all,  sec.  77,  pp. 

576,  577 
submission  of  all  matters  in  dispute,  effect  of,  sec.  77,  p.  577 
whether  award  may  be  good  in  part  and  bad  in  part,  sec.  77,  p.  577 
presumptions  in  favor  of  award,  sec.  77,  p.  577 
what  court  may  receive  and  confirm  award,  sec.  77,  p.  577 
submission,  providing  it  be  made  rule  of  court  not  having  juri.s- 

diction,  whole  proceeding  void,  sec.  77,  p.  578 
statute  not  complied  with,  court  has  no  jurisdiction,  sec.  77,  p.  578 
but  may  be  good  as  common  law  ai'bitration,  sec.  77,  p.  578 
effect  of  failure  to  confirm,  sec.  77,  p.  578 
parties  may  waive  confirmation,  sec.  77,  p.  578 
notice  of  time  of  confirmation  necessary,  sec.  77,  p.  578 
kind  of  notice  required,  sec.  77,  p.  578 

whether  majority  of  arbitrators  may  make  award,  sec.  77,  p.  579 
effect  of  submission  of  pending  action,  sec.  77,  pp.  579,  580 
agreement  to  arbitrate  does  not  deprive  court  of  jurisdiction,  sec. 

77,  p.  580 
what  necessary  to  authorize  court  to  render  judgment  on  award, 

sec.  77,  p.  580 
appeal  may  be  taken  from  such  judgment,  sec.  77,  p.  580 
reference  of  pending  action  to  referee,  effect  of,  sec.  77,  p.  581 
effect  of  judgment  on  award,  sec.  77.  p.  581 
whether  arbitrator  must  be  sworn,  sec.  77,  p.  581 
ne  exeat  and  arrest  and  bail,  sec.  78 
what  is,  sec.  78,  p.  581 

not  confined  to  equitable  actions,  sec.  78,  p.  582 
nature  of  demand  for  which  will  issue,  sec.  78,  p.  582 
statutory  proceedings  of  arrest  and  bail,  to  what  kinds  of  actions 

applicable,  sec.  78,  p.  583 
provision  of  constitution  against  imprisonment  for  debt,  effect  of, 

sec.  78,  p.  583 
remedy  usually  confined  to  cases  of  fraud,  concealment  of  prop- 
erty, or  breach  of  fiduciary  obligation,  or  tort,  sec.  78,  p.  583 
statutes  have  increased  classes  of  remedies  in  which  may  be  had, 

sec.  78,  p.  584 
arrest  and  bail,  object  and  purposes  of,  sec.  78,  pp.  584,  585 
effect  of  codes  on  powers  of  courts  of  equity  in,  sec.  78,  p.  585 
similar  to  attachment,  when,  sec.  78,  p.  585 
petition  for,  what  must  show,  sec.  78,  p.  585 


INDEX.  847 

Jurisdiction —  Continued. 

affidavit  and  undertaking  necessary,  sec.  78,  p.  586 

when  may  be  commenced,  sec.  78,  p.  586 

what  affidavit  must  show,  sec.  78,  p.  586 

when  property  must  be  shown  to  be  subject  to  execution,  sec.  78, 

pp.  586,  587 
in  equity,  when  and  how  commenced,  sec.  78,  p.  587 
not  a  mere  provisional  remedy,  sec.  78,  p.  587 
statutes  must  be  strictly  complied  with,  sec.  78,  p.  587 
defective  affidavit  or  petition  may  be  amended,  sec.  78,  p.  587 
so  of  undertaking,  sec.  78,  p.  587 
where  writ  may  issue,  sec.  78,  p.  588 

not  allowed  in  equity  if  adequate  remedy  at  law,  sec.  78,  p.  588 
and  rule  the  same  under  statutory  for  arrest  and  bail,  sec.  78,  p. 

5S8 
injunctions,  sec.  79 

is  an  equitable  remedy,  sec.  79,  p.  588 

but  has  become  statutory,  sec.  79,  p.  588 

remains  much  the  same  as  it  was  under  equity  practice,  sec.  79,  p.  588 

combination   of  common   law  and    equity  under  codes   has   not 

changed,  sec.  79,  p.  589 
jurisdiction  of  appellate  courts  over,  sec.  79,  p.  589 
statutes  have  extended  jurisdiction  in  affording,  sec.  79,  p.  589 
of  federal  courts  can  not  be  increased  by  state  laws,  sec.  79,  p.  589 
particular  classes  of  cases  considered,  sec.  79,  pp.  589,  590 
grounds  upon  which  relief  will  be  granted,  sec.  79,  p.  590 
can  not  be  had  where  an  adequate  remedy  at  law,  sec.  79,  p.  591 
and  want  of,  must  be  affirmatively  shown,  sec.  79,  p.  591 
what  will  amount  to  adequate  I'emedy  at  law,  sec.  79,  pp.  591-594 
solvency  of  defendant,  when  material,  sec.  79,  p.  592 
extraordinary  remedy  at  law  will  defeat  right,  sec.  79,  p.  593 
against  whom  may  issue,  sec.  79,  p.  594 
granting  of,  rests  in  discretion  of  court,  sec.  79,  p.  594 
power  usually  confined  to  courts  of  original  jurisdiction,  sec.  79, 

p.  594 
how  far  may  be  exercised  by  appellate  courts,  sec.  79,  pjj.  594-600 
right  to,  lost  by  failure  to  ask  in  time,  sec.  79,  p.  600 
when  courts  may  enjoin  collection  of  taxes,  sec.  79,  pjj.  600-606 
power  to  enjoin  issuance  and  sale  of  municipal   bonds,  sec.  79,  pp. 

606-608 
power  to  enjoin  judicial  proceedings  and  when  will  be  exercised, 

sec.  79,  pp.  608-612 
power  to  restrain  acts  of  subordinate  tribunals  or  officers,  sec.  79, 

pp.  612,  613 
courts  can  not  control  action  by  independent  department  of  gov- 
ernment by,  sec.  79,  p.  613 
can  not  be  used  to  determine  title  to  office,  sec.  79,  p.  613 
no  jurisdiction  in  criminal  cases,  not  affecting  property,  sec.  79,  p. 

614 
temporary,  may  be  granted  without  notice,  sec.  79,  p.  614 
but  only  until  notice  given,  sec.  79,  p.  614 
notice  may  be  waived,  sec.  79,  p.  614 
mandamus,  sec.  80 

was  formerly  common  law  writ,  sec.  80,  p.  614 

now  generally  statutory  writ  of  common  law  nature,  sec.  80,  p,  614 

nominally  a  prerogative  writ,  sec.  80,  p.  614 

but  considered  a  writ  of  right,  sec.  80,  pp.  614,  615 

in  what  sense  an  extraordinary  remedy,  sec.  80,  p.  615 


848  INDEX. 

Jurisdiction — Continued. 

whether  issuable  only  within  discretion   of  court,  sec.  80,  pp.  615 

616 
writ  essentially  the  same  in  all  the  states,  sec.  80,  p   616 
may  issue  against  all  classes  of  officers,  sec.  80,  pp.  616,  617 
what  acts  may  be  compelled  by,  sec.  80,  pp.  617,  618 
matter  of  discretion  can  not  be  controlled  by,  sec.  80,  p.  617 
can  not  be  used  as  writ  of  error,  sec.  80,  p  618 
exception  as  to  setting  aside  non-appealable  error,  sec.  80,  p.  618 
will  issue  on  showing  of  abuse  of  discretion,  sec.  80,  pp.  018,  619 
remedy  by  ordinary  proceeding,  when  will  defeat  right  to  sec   80 

p.'619 
can  not  issue  for  obligation  growing  out  of  contract,  sec.  80,  p  619 
or  affecting  mere  private  right,  sec.  80,  pp.  619,  620 
other  remedy  does  not  affect  right  to  in  ,some  states,  sec.  80,  p.  619 
sometimes  said  only  ministerial  duties  may  be  enforced  by,  sec  80 

p.  620 
but  may  enforce  judicial  duties,  sec.  80,  p.  620 
with  exception  that  can  not  control  discretion  or  judgment  sec 

80,  p.  620 
what  acts  a  court  or  judge  may  be  compelled  to  perform,  sec  80 

pp.  620-623 
where  refuses  to  act  at  all,  sec.  80,  p.  620 
BO  where  special  judge  refuses  to  act,  sec.  80,  p.  621 
if  duty  to  act  imperative,  character  of  act  immaterial  sec.  80  p. 

623 
writ  used  to  compel  payment  of  amount  due  from  public  corpora- 
tion, sec.  80,  p.  624 
or  to  levy  a  tax  for  such  purpose,  sec.  80,  p.  624 
but  not  to  collect  simple  debt  from  corporation,  sec.  80,  p.  624 
federal  court  judgment  for  amount  must  first  be  recovered,  sec.  90, 

p.  624 
how  far  used  in  matters  affecting  title  to  office,  sec.  80,  p.  624 
attorney  disbarred  may  be  restored  by,  when,  sec.  80,  p.  624 
may  be  used  to  compel  acceptance  of  office  when  elected  to,  sec. 

80,  pp.  624,  625 
jurisdiction  of  federal  courts  to  issue,  sec.  80,  p.  625 
power  of  appellate  courts  to  issue,  sec.  80,  pp.  625-627 
as  against  non-residents,  constructive  notice  may  be  given,  sec.  80, 

p.  627 
power  over  inferior  courts  confined  to  territorial  limits,  sec.  80,  p. 

627 
proceedings  in,  are  not  special  cases,  sec.  80,  p.  627 
power  of  judges  to  issue  at  chambers,  sec.  80,  p.  627 
power  to  issue  usually  confined  to  superior  courts,  sec.  80,  p.  627 
prohibition,  sec.  81 

formerly  a  common-law  writ,  sec.  81,  p.  627 
now  almost  wholly  statutory,  sec.  81,  p.  627 
object  of  to  restrain  judicial   tribunals  from  acting  without  or  in 

excess  of  their  jurisdiction,  sec.  81,  pp.  628,  629 
extent  of  jurisdiction  under  statutes,  sec.  81,  p.  628 
general  nature  of  writ  same  as  at  common  law,  sec.  81,  p.  628 
jurisdiction    to   issue   given   by  constitution  means   common-law 

writ,  sec.  81,  p.  629 
statute  extending  to  ministerial  acts  upheld,  sec.  81,  p.  629 
is  preventive  writ  and  can  not  issue  after  act  done,  sec.  81,  p.  629 
can  not  issue  to  prevent  commencement  of  action,  sec.  81,  p.  629 
further  action  may  be  restrained  at  any  stage,  sec.  81,  p.  629 


INDEX.  849 

Jurisdiction — Continued. 

may  issue  after  judgment  to  prevent  enforcement,  sec.  81,  p.  629 

acts  partially  completed  will  annul  what  has  been   done  and  pre- 
vent completion,  sec.  81,  pp.  629,  630 

lies  where  lower  court  has  been  deprived  of  jurisdiction,  sec.  81, 
p.  630 

power  to  issue  belongs  to  superior  courts  only,  sec.  81,  p.  630 

when  may  issue  by  supreme  court  of  United  States,  sec.  81,  p.  030 

and  by  other  federal  courts,  sec.  81,  p.  631 

in  what  sense  is  extraordinary  writ,  sec.  81,  p.  631 

kind  of  remedy  by  ordinary  proceeding  that  will  prevent  its  issu- 
ance, sec.  81,  pp.  631,  632,  636 

usually  denominated  a  prerogative  writ,  sec.  81,  p.  631 

but  treated  generally  as  writ  of  right,  sec.  81,  p.  631 

but  sometimes  held  to  issue  only  at  discretion,  sec.  81,  p.  631 

is  jurisdictional  writ,  sec.  81,  pp.  631,  632 

will  not  issue  to  correct  errors,  sec.  81,  pp.  631,  632 

right  to  certiorari  or  appeal  when  will  defeat  writ,  sec.  81,  pp.  632, 
633,  636 

delay  in  enforcement  of  other  remedies,  effect  of,  sec.  81,  pp.  632, 
633 

question  of  jurisdiction  must  be  presented  to  lower  court  first,  sec. 
81,  p.  633 

but  failure  to  raise  question  below  not  absolute  bar,  sec.  81,  pp. 
633,  634 

will  lie  for  want  of  jurisdiction  of  the  person,  sec.  81,  p.  634. 

distinction  between  want  or  excess  of  jurisdiction,  and  error,  sec. 
81,  pp.  634,635 

not  confined  to  inquiry  as  to  jurisdiction  of  general  subject-mat- 
ter, sec.  81,  pp.  635  636 

where  question  upon   sufficiency  of  service,  eflfect  of  finding  of 
lower  court,  sec.  81,  p.  636 

diflFerent  rule  where  no  service,  or  service  could  not  give  jurisdic- 
tion if  made,  sec.  81,  p.  636 

when  right  to  change  of  venue  speedy  and  adequate  remedy,  sec. 
81,  pp.  636,  637 

service   procured   by   fraud,   or  when   privileged  writ   will  issue, 
sec.  81,  pp.  636,  637 

appellate  courts  power  of  to  issue,  sec.  81,  p.  637 

whether  appeal  will  lie  from  order  refusing,  sec.  81,  pp.  637,  638 

power  of  judges  at  chambers,  sec.  81,  p.  638 

proper  remedy  to  prevent  action  by  disqualified  judjze,  sec.  81.  p. 
638 
habeas  corpus,  sec.  82 

object  of  the  writ,  sec.  82,  pp.  638,  639 

right  to  exists  independently  of,  and  can   not  be  taken  away  by 
statute,  sec.  82,  p.  639 

power  to  issue  given  generally  to  all  superior  courts,  state  and  na- 
tional, sec.  82,  p.  639 

appeal  generally  allowed  in  cases  of,  sec.  82,  p.  639 

if  not,  certiorari  lies,  sec.  82,  p.  639 

ground  of  doctrine  in  some  states  that  can  be  no  appeal,  sec.  82,  p. 
639 

causes  for  not  generally  provided  by  statutes,  sec.  82,  pp.  639,  640 

general  principles   upon  which  was   issued  by  courts  in  England 
control  courts  in  this  country,  sec.  82,  p.  640 

54 


850  INDEX. 

Jurisdiction — Continued. 

causes  for  have  been  increased  and  powers  of  courts  extended,  sec. 

82,  p.  640 
can  issue  against  judicial  officers  only  to  test  jurisdiction,  sec.  82, 

p.  640 
to  what  extent  jurisdiction  may  be  inquired  into,  sec.  82,  pp.  640-04-3 
excessive  or  unwarranted  sentence  imposed  when  ground  for  the 

writ,  sec.  82,  pp.  641-643 
sufficiency  of  indictment  when  may  be  inquired  into,  sec.  82,  p. 

643 
surrender  of  fugitive  from  justice  how  far  proceedings  may  be 

tested  by,  sec.  82,  pp.  643-645 
when  writ  will  lie  to  test  sufficiency  of  evidence,  sec.  82,  p.  645 
judgment  of  competent  court  sufficiency  of  will  not  be  inquired 

into,  sec.  82,  pp.  646,  647 
when  question   whether  law  under  which  cotirt  acted  was  consti- 
tutional may  be  determined  by,  sec.  82,  pp.  646,  647 
and  where  statute  repealed,  sec.  82,  pp.  646,  647 
petitioner  may  be  discharged  before  or  after  final  judgment,  sec. 

82;  p.  647 
judgment  out  of  term  time  void  and  writ  will  issue,  sec.  82,  p.  647 
must  be  actual  imprisonment,  sec.  82,  p.  648 
writ  confined  to  question  of  release  or  recommitment,  sec.  82,  p. 

648 
can  not  determine  property  rights,  sec.  82,  p.  648 
is  a  writ  of  right,  sec.  82,  p.  648 

but  courts  have  discretion  as  to  issuance  of,  sec.  82,  p.  648 
applies  where  one  not  speedily  brought  to  trial,  sec.  82,  p.  648 
effect  of  failure  to  bring  to  trial,  sec.  82,  pp.  648,  649 
when  question  of  legality  of  confinement  must  be  determined 

from  the  record,  sec.  82,  p.  649 
extent  of  jurisdiction  of  federal  courts  over,  sec.  82,  pp.  649-058 
power  of  state  courts  over  proceeding  in  federal  courts,  sec.  82,  pp. 

654-658 
and  of  imprisonment  by  federal  officers,  sec.  82,  p.  656 
generally  held  denial  of  writ  no  bar  to  another  application,  sec. 

82,  p.  658 
but  order  discharging  bars   further  prosecution,  when,  sec.  82,  p. 

658 
territorial  jurisdiction  of  courts  in  cases  of,  sec.  82,  p.  658 
may  issue  from  one  judge  and  be  returnable  to  another,  sec.  82,  p. 

658 
change  of  venue,  application   for,  when   ground  for   the  writ,  sec. 

82,  pp.  658,  659 
quo  warranto,  sec.  83 

common  law  prerogative  writ  in  nature  of  writ  of  right,  sec.  83,  p. 

659 
formerly  issued  out  of  chancerv,  sec.  83,  {\  659 
object  of  the  writ,  sec.  83,  pp.  659,  660,  604,  605 
superseded  by  information  in  nature  of  quo  warranto,  sec.  83,  p.  660 
modern  proceeding  by  information  defined,  sec.  83,  ]i.  660 
proceedings  by  statute  for  contesting  elections,  sec.  83,  p.  600 
proceeding,  whatever  its  form,  has  become  statutory,  sec.  83,  p.  661 
courts  may  still  issue  writ  as  originally  existed,  sec.  83,  p.  661 
statute  providing  other  remedy  does  not  take  away  jurisdiction 

m,  sec.  83,  ]).  601 
held  otherwise  in  some  of  the  states,  sec.  83,  p.  661 
courts  of  equity,  jurisdiction  of,  sec.  83,  p.  662 


INDEX.  851 

Jlirisdiction — Continued. 

grant  of  power  to  issue  writ  includes  information  in  nature  of,  sec. 

83,  p.  662 
includes  power  to  inquire  into  existence  of  private  corpoi'ations  or 

right  to  exist,  when,  sec.  83,  p.  662 
power  extends  to  municipal  corporations  and  officers,  sec.  83,  p.  662 

extent  of  the  power  in  such  cases,  sec.  83,  pp.  662,  663 
when  proceeding  must  be  against  corporation  and  when  against 

individuals  claiming  to  be,  sec.  83,  p.  663 
against  corporation  admits  its  existence,  sec.  83,  p.  663 
some  cases  the  other  way,  sec.  83,  p.  663 

distinction  between  municipal  and  private  corporations  in  this 
respect,  sec.  83,  p.  664 
formerly  regarded  as  criminal  proceeding,  sec.  83,  p.  661 
and  brought  in  name  of  prosecuting  officer,  sec.  83,  p.  664 
but  under  most  statutes  treated  as  civil,  sec.  83,  p.  664 
but  criminal  in  its  objects  and  nature,  sec.  83,  p.  664 
object  of  the  proceeding,  sec.  83,  pp.  664,  665 
penalty  imposed,  what  is,  .sec.  83,  p.  665 
writ  not  allow^ed  as  of  course,  but  issues  on  order  of  court,  sec.  83, 

p.  665 
distinction  as  to  this  between  proceedings  on  behalf  of  state  and 

on  behalf  of  private  individual,  sec.  83,  pp.  665,  666 
in  whose  name  may  be  prosecuted,  sec.  83,  pp.  666,  667 
what  may  be  shown  to  authorize  proceeding  by  private  individual, 

sec.  83,  p.  667 
power  of  court  sometimes  limited  by  amount  in  controversy,  sec. 

83,  p.  667 
constitutionality  of  statute,  when  may  be  tested  by,  sec.  83,  p.  667 
jurisdiction  to  inquire  into  right  to  hold  office  extends  to  all  classc? 

of  officers,  sec.  83,  p.  668 
how  far  may  inquire  into  right  to  membership  in  legislative  bodv, 

sec.  83,'p.  668 
how  far  affected  by  vesting  such  power  in  the  body  itself,  sec.  83, 

.  P-  6^^ 

jurisdiction  does  not  depend  upon  whether  office  claimed  by  ap- 
pointment or  popular  vote,  sec.  83,  pp.  668,  669 

remedy  extraordinary,  sec.  83,  p.  669 

can  not  be  resorted   to  if  adequate  remedy  by  ordinary  proceed- 
ing, sec.  83,  p.  669 

only  applicable  where  public  has  an  interest,  sec.  83,  p.  669 

can  not  be  used  to  test  right  to  purely  private  office  or  employ- 
ment, sec.  83,  p.  669 

what  may  be  determined  under,  in  case  of  contest  for  office,  sec. 
83,  pp.  669,  670 

foreign  corporation  mav  be  prevented  from  doing  business  in  state, 
when,  sec.  83,  p.  670 
new  trials  and  vacation  of  judgments,  sec.  84 

by   what  means    party  may  be  relieved   from   erroneous  or  void 

judgment,  sec.  84,  pp.  670,  671 
audita  querela  almost  obsolete,  but  exists  in  some  states,  sec.  84,  p. 
671 
its  objects,  sec.  84,  p.  671 
power  to  grant  new  trials  inherent,  sec.  84,  p.  671 
and  can  not  be  taken  away  by  statute,  sec.  84,  p.  671 
whether  inferior  courts  possess,  sec.  84,  pp.  671,  672 
distinction  made  between  power  to  vacate  and  modify  and  to  grant 
new  trials,  sec.  84,  p.  672 


852  INDEX. 

Jurisdiction — Continued. 

inherent  powers  may  be  limited  and  controlled,  and  this  has  been 

done,  sec.  84,  pp.  672,  673 
statutes  provide  the  time  when  and  means  by  which  relief  may  be 

had,  sec.  84,  p.  673 
statute  not  grants  of,  but  limitations  upon   the  power,  sec.   S4,  p. 

673 
extent  and  object  of  the  inherent  power  to  give  relief,  sec.   84,  p. 

673 
for  mere  errors,  within  legislative  control,  sec.  84,  p.  673 
courts  have  control  over  their  judgments  until  end  of  term,  sec. 

84,  pp.  673,  674 
and  may,  within  the  term,  vacate  or  modify  its  judgments  or  grant 

new  trials,  sec.  84,  p.  674 
after  term  judgments  final  and  power  over  ceases,  sec.  84,  p.  674 
and  can  only  be  regained  by  new  proceedings,  sec.  84,  p.  674 
what  necessary  to  give  jurisdiction  of  new  proceeding,  sec.  84,  p.  674 
notice  how  served,  sec.  84,  p.  674 
may  be  waived,  sec.  84,  p.  674 
requirement  that  judgment  must  be  vacated  during  terra,  may  be 

waived,  sec.  84,  p.  674 
when  proceeding  for  new  trial  understatutes  must  be  commenced, 

sec.  84,  pp.  675,  676,  678 
if  court  acts  after  time  limited,  proceedings  void,  sec.  84,  p.  676 

some  cases  to  the  contrary,  sec.  84,  p.  676 
time  can  not  be  extended,  unless  authorized  by  statute,  sec.  84,  p. 

676 
except  by  consent  of  parties,  sec.  84,  p.  676 
party  may  be  relieved  from  a  failure  to  act  in  time  in  case  of  fraud 

or  mistake,  sec.  84,  pp.  676,  677 
statutory  exceptions  to  rule  that  proceedings  must  be  commenced 

within  certain  time,  sec.  84,  pp.  676,  677 
exceptions  independently  of  statute,  sec.  84,  p.  677 
statute  limiting  time,  how  far  binding  on  the  courts,  sec.  84,  pp. 

677,  678 
judgment  may,  by  statute,  be  made  final  before  end  of  term,  sec. 

84,  p.  679 
appeal  does  not  deprive  court  of  power  over  judgment  during 

term,  sec.  84,  p.  680 
statutes  are  limitations  of  grounds  for  new  trial  and  vacation  of 

judgment  as  well  as  to  time,  sec.  84,  pp.  680,  681 
limitations  apply  only  to  erroneous  and  not  to  void  judgments, 

sec.  84,  p.  681 
latter  open  to  attack  at  any  time,  sec.  84,  p.  681 
but  not  necessarily  where  invalidity  does  not  appear  on  face  of 

record,  sec.  84,  p.  681 
right  to  new  trial  confined  to  grounds  specified  in  statute,  sec.  84, 

p.  682    • 
and  made  the  basis  of  the  motion,  sec.  84,  p.  682 
courts  of  equity  may  grant  new  trials  and  vacate  iudgments  of 

other  courts,  sec.  84,  pp.  682,  683 
how  far  and  for  what  causes  such  power  will  be  exercised,  sec,  84, 

pp.  682,  683 
how  far  one  court  may  vacate  or  set  aside  proceedings  of  court  of 

concurrent  jurisdiction,  sec.  84,  pp.  683,  684 
can  not  upon  mere  motion,  sec.  84,  p.  683 
but  may  by  independent  action,  sec.  84,  p.  683 


INDEX.  853 

Jurisdiction — Continued. 

not,  however,  while  action  is  still  pending  in  the  other  court,  sec. 

84,  p.  683 
and  adequate  remedy  by  motion  in  court  rendering  judgment, 

other  court  will  not  interfere,  sec.  84,  p.  683 
but  refusal  does  not  rest  on  want  of  jurisdiction,  sec.  84,  ]>p.  683, 

684 
federal  courts,  power  of,  to  set  aside  proceedings  of  state  courts, 

sec.  84,  p.  684 
statutes  authorizing  vacation  or  review  do  not  take  away  general 

equity  jurisdiction  to  vacate  and  annul,  sec.  84,  p.  684 
power  does  not  extend  to  correction  of  errors,  sec.  84,  p.  685 
courts  of  chancery  proceed  on  equitable  grounds,  sec.  84,  p.  685 
will  not  vacate  because  void,  unless  inequitable,  sec.  84,  p.  685 
what  character  of  fraud  will  authorize  vacation  of  judgment,  sec. 

84,  pp.  685,  688 
must  be  extrinsic  or  collateral  to  the  matter  determined  by  the 

court,  sec.  84,  p.  685 
fact  that  judgment  procured  by  perjury  or  false  evidence  will  not 

authorize,  sec.  84,  pp.  686,  687 
different  rule  in  some  states,  sec.  84,  p.  687 
court  of  equity  will  not  interfere  if  other  adequate  remedy,  sec. 

84,  p.  688 
proceeding  to  vacate,  can  not  retry  questions  of  law  or  fact,  sec. 

84,  p.  688 
appropriate  remedy  in  court  of  equity  by  bill  of  review,  sec.   84, 

p.  688 
remedy  abolished  in  some  states,  sec.  84,  p.  688 
but  original  action  of  like  nature  may  be  prosecuted,  sec.  84,  p. 

688 
new  trial  may  be  granted  of  part  of  issues,  sec.  84,  p.  688 
but  not  so  as  to  finding  of  part  of  facts,  sec.  84,  p.  688 
proceeding  to  vacate  by  court  rendering  usually  by  motion,  sec.  84, 

p.  689 
when  relief  can  not  be  obtained  by  action  in  another  court,  sec. 

84,  p.  689 
when  only  by  independent  action,  sec.  64,  pp.  689.  690 
for  relief  on  account  of  errors,  remedy  is  by  motion  for  new  trial 

in  court  rendering  judgment,  sec.  84,  p.  69iJ 
writ  of  coram  nobis,  what  is,  and  objects  of,  seo.  84,  p.  690 
and  writ  of  recordari,  sec.  84,  p.  690 
remedy  by  motio^i  held  a  direct  attack,  sec.  84,  p.  690 
after  final  determination  of  action,  to  what  remedy  by  motion 

confined,  sec.  84,  p.  690 
when  independent  action  necessary,  sec.  84,  p.  690 
order  vacating   not  generally  reviewable  by  court  making  it,  sec. 

84,  pp.  690,  691 
but  may  be  set  aside  during  term,  sec.  84,  p.  691 
to  what  court  and  where  motion  for  new  trial  must  be  made,  sec. 

84,  p.  691 
action  to  annul,  where  must  be  brought,  sec.  84,  p.  691 
in  federal  courts,  decision  on  not  subject  to  review,  how  far  motion 

for  is,  sec.  84,  p.  691 
addressed  to  discretion  of  court,  sec.  84,  p.  691 
exception  to  ruling  on,  how  taken,  sec.  84,  p.  691 
new  trial  as  of  right,  when  allowed,  sec.  84,  p.  692 
whether  new  trial  can  be  had  after  entry  of  judgment,  sec.  84,  p. 

692 


854  INDEX. 

Jurisdiction — Continued. 

when  affirmance  on  appeal  not  a  bar  to  motion,  sec.  84,  p.  692 
writs  of  error,  sec.  85 

are  of  two  kinds,  sec.  85,  p.  692 

coram  nobis,  nature  and  objects  of,  sec.  85,  p.  692 

and  of  coram  vobis,  sec.  85,  pjj.  692,  693 

former  almost  out  of  use,  sec.  85,  p.  693 

writ  of  error  as  now  used  defined,  sec.  85,  j3.  693 

is  a  common-law  remedy  for  correction  of  errors,  sec.  85,  p.  694 

regulated,  at  present  day,  by  statute,  sec.  85,  p.  694 

not  applicable  to  special  statutory  proceedings,  sec.  85,  p.  694 

record  on,  can  not  be  contradicted,  sec.  85,  p.  694 

record,  what  must  contain,  sec.  85,  p.  694 

as  existed  at  common  law,  could  not  review  order  after  judgment, 
sec.  85,  p.  694 

in  what  cases  proper  remedy  in  federal  courts,  sec.  85,  p.  694 

proper  in  criminal  case,  sec.  85,  p.  694 

confined  to  common-law  actions,  sec.  85,  p.  695 

but  subject  to  statutory  control,  sec.  85,  p.  695 

can  not  be  used  to  control  discretion  of  lower  court,  sec.  85,  p. 
695 

will  issue  only  after  final  judgment,  sec.  85,  p.  695 

generally  treated  as  writ  of  right,  sec.  85,  p.  695 

coram  nobis  not  writ  of  right,  sec.  85,  p.  695 

litigants  have  no  vested  right  to,  and  may  be  taken  away  by  stat- 
ute, sec.  85,  p.  695 

only  allowed  to  party  or  privy,  sec.  85,  p.  696 

sometimes  confined  to  parties  of  record,  sec.  85,  y>.  696 

so  far  original  proceeding  as  to  require  notice  and  making  of  is- 
sues, sec.  85,  p.  696 

is  put  in  motion  by  petition,  sec.  85,  p.  696 

and  summons  or  citation  issues,  sec.  85,  p.  696 

pleading  is  assignment  of  errors,  sec.  85,  p.  696 

only  errors  assigned  can  be  considered,  sec.  85,  p.  696 

decision  of  court  below  necessary  foundation  of  jurisdiction,  sec. 
85,  p  696 

must  appear  by  record  to  have  been  presented  and  decided,  sec. 
85,  pp.  696,  697 

errors  of  fact  can  not  be  corrected  by,  sec.  85,  p.  697 

writ  has  been  abolished  in  some  states,  sec.  85,  p.  697 

legislature  may  regulate,  sec.  85,  p.  697 

appeal  supersedes,  when,  sec.  85,  p.  697  . 

suspends  proceedings  in  court  below,  sec.  85,  p.  698 

but  does  not  vacate  judgment,  sec.  85,  p.  698 

jurisdiction  of,  can  not  be  conferred  by  statute,  sec.  85,  p.  698 
certiorari,  sec.  86 

defined,  sec.  86,  pp.  698,  699 

objects  of,  sec.  86,  pp.  698-701,  712-717 

whether  right  of  appeal  or  writ  of  error  will  bar  right  to,  sec.  86, 
pp.  698,  699 

to  what  extent  power  to  issue  inherent  and  beyond  legislative  ini 
terference,  sec.  86,  p.  699 

to  what  courts  may  issue,  sec.  86,  pp.  699-702 

where  remedy  can  not  be  had  by  writ  of  error,  sec.  86,  p.  700 

definition  given  does  not  cover  writ  as  at   present  used,  sec.  86,  p. 
702 

at  common  law  was  extraordinary  legal  remedy,  sec.  86,  p.  703 


INDEX.  855 

Jurisdiction —  Continued. 

but  has  become  to  a  great  extent  ordinary  writ  for  correction  of 

errors,  sec.  86,  p.  703 
at  what  time  may  issue,  sec.  86,  pp.  703,  704 
what  relief  may  be  granted  under,  sec.  86,  p.  704 
is  remedial  and  not  preventive,  sec.  86,  p.  7u4 
in  some  states  can  only  issue  to  test  jurisdiction,  sec.  86,  p.  704 
and  not  to  correct  errors,  sec.  86,  p.  704 

but  extends  to  jurisdiction  of  the  person,  sec.  86,  pp.  704,  705 
held  may  inquire  whether  lower  court  proceeded  regularly  and 

according  to  law,  sec.  86,  p.  705 
meaning  of    'regularly  and  according  to  law,"  sec.  86,  pp.  705,  706 
what  is  meant  by  acting  "  illegally  "  under  statutes  authorizing  writ 

on  that  ground,  sec.  86,  p.  707 
strict  limitation  of  the  use  of  the  writ  in  some  cases,  sec.  86,  pp. 

708,  709 
trial  without  a  hearing  is  an  excess  of  jurisdiction,  sec.  86,  pp.  708, 

709 
distinction    made  between  cases  where  is  another  remedy  and 

those  where  there  is  none,  as  to  the  extent  of  the  remedy,  sec. 

86,  p.  709  ■ 

in  many  cases  extended  to  review  of  questions  of  law,  sec.  36,  p. 

710 
and  consideration  of  the  evidence,  sec.  86,  p.  710 
distinction  made  in  this  respect  between  courts  and  quasi  judicial 

bodies,  sec.  86,  p.  710 
and  between  courts  acting  summarily  and  when  not,  sec.  86,  p.  710 
right  of  appeal  not  absolute  bar  to,  sec.  86,  p.  711 
allowed  to  serve  purpose  of  writ  of  error  where  latter  can  not  be 

resorted  to,  sec.  86,  p.  711 
or  where  right  of  appeal  lost  without  fault,  sec.  86,  pp.  711,  712 
in  some  states  has  choice  of  resorting  to  writ  or  to  appeal,  or  writ 

of  error,  sec.  86,  p.  712 
in  others,  held  can  not  be  used  as  substitute  for  an  appeal,  sec.  86, 

p.  712 
from  what  courts  may  issue,  sec.  86,  p.  712 
confusion  as  to  objects  of  writ  by  reason  of  statutes,  sec.   86,  pp. 

712,  713,  714 
liberal  use  of,  in  some  states,  sec.  86,  pp.  714,  715 
conflict  in  the  decisions  as  to  the  scope  of  the  remedy,  sec.  86,  pp. 

712-716 
whether  may  be  used  to  compel  lower  court  to  proceed  with  action, 

sec.  86,  p.  716 
writ  of  same  name  allowed  to  bring  up  part  of  record,  sec.    86,  p. 

716 
used  in  connection  with  habeas  corpus,  sec.  86,  p.  717 
bills  of  certiorari  in  chancery,  objects  of,  sec.  86,  p.  717 
writ  brings  up  entire  record  for  review,  sec.  86,  p.  717_ 
question  must  be  determined  by  record,  sec.  86,  p.  717 
when  the  evidence  may  be  looked  to,  sec.  86,  pp.  718,  719 
general  scope  of  the  remedy,  sec.  86,  pp.  718-721 
can  not  be  used  to  test  legal  existence  of  corporation,  sec.   86,  p. 

721 
issuance  of,  in  what  sense  within  the  discretion  of  the  court,  sec 

86,  pp.  721,  722 
right  to  may  be  lost  by  laches,  sec.  86,  p.  722 
operates  as  a  supersedeas,  sec.  86,  p.  722 
can  not  be  issued  by  judge  at  chambers,  sec.  86,  p.  722 


856  INDEX. 

Jurisdiction — Continued. 

what  judgment  may  be  rendered  under,  sec.  86,  p.  722 
bills  and  writs  of  review,  sec.  87 

bill  of  review  in  equity  similar  to  writ  of  error,  sec.  87,  p.  722 
may  be  brought  for  error  appearing  on  face  of  record,  sec.  87,  p. 

722 
when  question  must  be  determined  by  record,  sec.  87,  ji.  723 
bills  in  nature  of  review,  objects  of,  sec.  87,  p.  723 
bills  for  impeachment  of  decrees  for  fraud,  sec.  87,  p.  723 
proceedings  have  fallen  into  disuse  in  most  of  the  states,  sec.  87, 

p.  723 
included  in  writs  of  error  and  certiorari,  sec.  87,  p.  723 
writs  of  review  provided  for  by  statutes,  sec.  87,  pp.  723,  724 
ules  respecting  certiorari  apply  to  writs  of  review,  sec.  87,  -p.  724 
statutory  remedies  in  the  nature  of,  sec.  87,  pp.  723-725 
when  lies  for  newly  discovered  evidence  or  new  matter,  sec.  87,  p. 

725 
statutory  not  applicable  to  decrees  of  divorce,  sec.  87,  p.  725 
based  on  errors  of  law  what  complaint  under  statutory  proceeding 

must  contain,  sec.  87,  p.  725 
differs  from  action  to  annul  judgment,  how,  sec.  87,  p.  725 
remedy  by  does  not  supersede  power  to  annul  or  set  aside  judg- 
ment, sec.  87,  p.  726 
how  and  where  action  to  review  brought  and  prosecuted,  sec.  87, 

p.  726 
bars  appeal,  sec.  87,  p.  726 
what  judgments  are  subject  to  revieiw  by  under  codes,  sec.  87,  p. 

727 
court  of  concurrent  jurisdiction  can  not  entertain,  sec.  87,  p.  727 
decree  under  can  not  be  reviewed,  sec.  87,  p.  727 
appeals,  sec.  88 

origin  of  the  right  of,  sec.  88,  p.  728 

is  now  wholly  statutory,  sec.  88,  p.  728 

what  may  be  reviewed  by,  sec.  88,  p.  728-730 

how  jurisdiction  in  given,  sec.  88,  p.  730 

not  proper  to  remove  cause  from  state  court  to  supreme  court  of 

United  States,  sec.  88,  p.  730 
when  remedy  must  be  sought,  sec.  88,  p.  730 
courts  can  not  extend  time  given  by  statute,  sec.  88,  p.  731 
generally  will  only  lie  from  final  judgments,  sec.  88,  p.  731 
but  provided  otherwise  in  some  states,  sec.  88,  pp.  731,  732 
right  of  appeal  in  all  cases  depends  upon  the  statute,  sec.  88,  p.  732 
may  be  taken  from  part  of  judgment,  sec.  88,  p.  732 
notice  of  appeal  required,  sec.  88,  pp.  732,  733,  734 
notice  to  co-narties  when  necessary  and  object  of,  sec.  88,  pp.  732, 

733 
who  must  be  joined  in  the  appeal,  sec.  88,  p.  733 
notice  in  what  cases  dispensed  with,  sec.  88,  p.  733 
notice  may  be  waived,  sec.  88,  p.  733 
who  must  be  notified,  sec.  88,  pp.  733,  734 

bond  when  required  and  effect  of  failure  to  give,  sec.  88,  p.  734 
affidavit  on  appeal  when  necessary,  and  effect  of  failure  to  make, 

sec.  88,  p.  734 
provision  usually  made  for  amendment,  sec.  88,  p.  734 
record  on  appeal  what  must  contain,  sec.  88,  p.  735 
motion  for  new  trial  when  necessary  as  foundation  for,  sec.  88,  p. 

735 


INDEX.  857 

Jurisdiction — Continued. 

assignment  of  errors,  necessity  for  and  when  must  be  filed,  sec. 

88,  p.  735 
requirements  of  statute  are  limitations  upon  jurisdiction,  sec.  88, 

p.  736 
only  questions  presented  bv  the  record  can  be  considered,  sec.  88, 

p.  736 
exceptions,  sec.  88,  p.  736 
eflfect  of  appeal  on  jurisdiction  of  court  below,  sec.  88,  p.  736 
inherent  powers  of  appellate  courts,  sec.  88,  p.  736 
may  be  prevented  from  acting  when,  and  how,  sec.  88,  p.  736 
jurisdiction  can  not  be  given  by  consent,  sec.  88,  p.  737 
naturalization,  sec.  89 

in  what  courts  jurisdiction  vested,  sec.  89,  p.  737 
extent  of  discretion  vested  in  courts  as  to,  sec.  89,  pp.  737-739 
power  to  provide  for  exclusively  in  congress,  sec.  89,  p.  737 
preliminary  proceedings  before  clerk  ministerial,  sec.  89,  p.  739 
when  preliminary  declaration  dispensed  with,  sec.  89,  p.  739 
final  proceedings  judicial  and  adjudication  conclusive,  sec.  89,  p. 

739 
certificate  how  may  be  overthrown,  sec.  89,  pp.  739,  740 
proceeding  to  annul  in  what  court  may  be  prosecuted,  sec.  89,  p. 

740 
how  adjudication  can  be  shown,  sec.  89,  p.  740 
when  will  be  presumed,  sec.  89,  p.  740 
power  of  courts  to  amend  their  records  in  proceedings  for,  sec.  89, 

p.  740 
when  certificate  of  admission  takes  effect,  sec.  89,  pp.  740,  741 
nature  and  character  of  jurisdiction  of  state  courts  in,  sec.  89,  jj. 

741 
what  are  courts  of  record  within  the  meaning  of  the  Jaw  author- 
izing, sec.  89,  p.  741 
necessary  qualifications  of  court  to  grant,  sec.  89,  p.  742 

here  declaration  of  intention  may  be  made,  sec.  89,  p.  742 
misnomer  of  applicant,  effect  of,  sec.  89,  p.  742 
pardons,  sec.  90 

effect  of  on  judgment  of  court,  sec.  90,  p.  742 

power  is  not  judicial,  sec.  90,  p.  742 

is  an  executive  power,  sec.  90,  p.  742 

defined,  sec.  90,  p.  742 

includes  power  to  reprieve,  see.  90,  p.  743 

but  not  of  commutation,  sec.  90,  p.  743 

in  whom  vested,  sec.  90,  p.  743 

given  by  constitution  can  not  be  taken  away  by  statute,  sec.  90,  p. 

743 
can  not  be  exercised  by  legislature,  sec.  90,  p.  743 
generally  withheld  in  cases  of  impeachment  and  treason,  sec.  90, 

p.  744 
at  what  stage  of  proceedings  may  be  exercised,  sec.  90,  p.  744 
can  not  be  enforced  against  consent  of  party  to  be  benefited,  sec. 

90,  p.  744 
conditional,  effect  of,  sec.  90,  p.  744 

once  granted  can  not  be  revoked  except  conditional  and  condi- 
tion broken,  sec.  90,  p.  744 
power  to  recommit  for  violation  of  conditional,  by  whom  and  how 

exercised,  sec.  90,  p.  745 
notice  of  hearing  to  recommit  when  necessary,  sec.  00,  p.  745 


858  INDEX. 

Jurisdiction — Continued. 

statutes  authorizing  deductions  for  good  behavior  not  infringe- 
ment of  pardoning  power,  sec.  90,  p.  745 
procured  by  fraud  is  void,  sec.  90,  p.  745 

Jurisdiction  as  to  Amount- 
courts  can  not  maintain  jurisdiction  of  case  involving  more  or  less 

than  statutory  limit,  sec.  16,  p.  59 
fixed  by  constitution,  legislature  can  not  increase,  sec.  16,  p.  59 
amount  alleged  in  plaintiff's  pleading  controls,  sec.  16,  p.  59 
sometimes  held  prayer  for  relief  controls,  sec.  16,  p.  59 

in  others  that  parol  proof  may  be  heard  to  show  amount  in  con- 
troversy, sec.  16,  p.  59 
amount  alleged  in  bad  faith  disregarded,  sec.  16,  p.  59  * 

complaint  several  counts,  total  of  all  determines,  sec.  16,  p.  59 
but  held  in  such  case  conclusion  of  pleading  controls,  sec.  16,  p.  59 
account  filed  as  complaint,  footing  determines,  sec.  16,  p.  60 
rule  as  to,  where  defendants  jointly  sued,  sec.  16,  p.  60 
where  verdict  of  jury  for  less  than  jurisdictional  amount,  sec.  16,  p.  60 
and  in  action  of  replevin,  where  value  found  to  be  below,  sec.  16, 

p.  60 
interest  and  costs  usually  excluded  by  statute  in  fixing  limitation, 

sec.  16,  p.  60 
this  the  provision  of  statute  fixing  jurisdiction  of  federal  courts,  sec. 

16 ,  p.  60 
attorneys'  fees  part  of  indebtedness,  sec.  16,  p.  61 
effect  of  judgment  for  less  than  amount,  sec.  16,  p.  61 
excess  may  be  remitted  and  save  jurisdiction,  sec.  16,  p.  61 
running  account  can  not  be  divided  to  give,  sec.  16,  p.  61 
failing  to  claim  interest,  effect  of,  sec.  16,  p.  62 
in  federal  courts,  amount  necessary  to  give  must  be  alleged,  sec.  16, 

p.  62 
test  in  action  to  quiet  title,  sec.  16,  p.  62 

in  action  to  set  aside  fraudulent  conveyance,  sec.  16,  p.  62 
in  federal  court,  amount  alleged  not  conclusive,  sec.  16,  p.  63 
what  test  as  to  value  of  property,  sec.  16,  p.  63 
successful  defense  as  to  part  does  not  defeat  jurisdiction,  sec.  16, 

p.  63 
rule  in  case  of  creditor's  bill,  sec.  16,  p.  63 
counterclaim  or  set-off,  effect  of,  sec.  16,  p.  63 
receiver  of  national  bank  not  affected  by  limit,  sec.  16,  p.  63 
nor  agent  of,  sec.  16,  p.  63 
nor  when  United  States  a  party,  sec.  16,  p.  64 
rules  affecting  appellate  jurisdiction,  sec.  16,  pp.  64-67 
in  garnishment  proceedings,  what  controls,  sec.  75,  p.  551 

Jurisdiction  of  the  Person- 
how  obtained,  sec.  11,  p.  31 
may  be  given  by  consent,  sec.  13,  p.  36 

objection  to,  may  be  waived  how,  sec.  13,  p.  36;  sec.  22,  p.  103 
court  having  lost,  how  restored  by  act  of  defendant,  sec.  13,  p.  36 
general  appearance  gives  consent,  sec.  13,  p.  37 
special  appearance,  what  is,  and  its  effects,  sec.  13,  p.  37 
to  be  special,  must  be  on  jurisdictional  grounds,  sec.  13,  p.  37 
in  some  states  special  appearance  waives  defects  in  service,  sec.  13, 

p.  37 
special  mode  of  appearance  in  England,  sec.  13,  p.  37 
appearance  may  be  entered  by  attorney,  sec.  13,  p.  38 
by  unauthorized  attorney,  effect  of,  sec.  13,  pp.  38 


INDEX.  859 

Jurisdiction  of  the  TeTson— Continued. 

how  relief  from  unauthorized  appearance  may  be  had  and  its  eflfect, 

sec.  13,  pp.  38-41 
presumption  that  appeai*ance  authorized,  sec.  13,  p.  41 
record  showing  appearance  not  conclusive,  sec.  13,  p.  41 
distinction  between  domestic  and  foreign  judgments  as  to  effect  of 

recitals,  sec.  13,  p.  41 
two  kinds  of  service,  actual  and  constructive,  sec.  13,  j).  41 
distinction  between,  sec.  13,  p.  41 

acknowledgment  of  service  how  made,  and  effect  of,  sec.  13,  p.  41 
jurisdiction  authorizing  personal  judgment,  how  obtained,  sec.  13,  p.' 

42 
service  out  of  state  is  constructive,  sec.  13,  p.  42 
when  constructive  service  allowed,  sec.  13,  p.  42 
service  by  copy  in  state  is  personal,  sec.  13,  p.  43 
non-resident  may  be  served  if  found,  sec.  13,  p.  43 
non-resident  plaintiff  may  maintain  action,  sec.  13,  p.  43 
can  be  no  appearance  for  minor,  sec.  13,  p.  43 
how  jurisdiction  of  the  person  proved,  sec.  23,  p.  125 
when  personal  service  necessary  to  give,  sec.  33,  p.  214 

Jury- 
trial  by,  when  necessary  to  constitute  due  process  of  law,  sec.  33,  pp. 

218,  219,  221,  222 
defendant  entitled  to,  in  cases  triable  by  jurv  at  common  law,  sec. 

33,  p.  222 
law  requiring  prosecution  in  county  rests  upon  right  to  trial  by,  sec. 

69,  p.  478 
is  a  right  that  can  not  be  taken  away  by  statute,  sec.  69,  p.  478 
entitled  to  have  selected  from  county,  sec.  69,  p.  478 

Justices  of  the  peace- 
courts  of,  whether  courts  of  record,  sec.  6,  p.  8 
when  liable  for  acts  done  in  excess  of  jurisdiction,  sec.  64,  p.  417 
power  of,  to  punish  for  contempt,  sec.  72,  p.  500 


Law  of  the  Land.     (See  Due  Process  of  Law.) 
defined,  sec.  33,  pp.  208,  209 
due  process  of  law  intended  to  convey  same  meaning,  sec.  33,  p.  208 

Legislature- 
powers  of,  sec.  29,  pp.  186-196 

how  far  powers  of  may  be  controlled  by  courts,  sec.  29,  pp.  183-196 
power  of,  to  provide  for  constructive  service  of  process,  sec.  33,  pp. 

213-215 
when  can  not  authorize  an  injunction,  sec.  33,  pp.  219,  220 
may  require  railroad  to  be  fenced,   and   make   failure  conclusive 

evidence  of  negligence,  sec.  33,  p.  22'i 
can  not  deprive  party  of  right  to  resort  to  the  courts,  sec.  33,  p.  222 
but  may  regulate  time  and  manner  of  seeking  remedy,  sec.  33.  p.  222 
power  of,  to  confer  or  take  away  jurisdiction  of  judges,  sec.  54,  pp. 

355-360 
power  of,  to  punish  for  contempt,  sec.  54,  p.  359 ;  sec.  72,  p.  496 
power  of,  to  impose  other  than  judicial  duties  on  judges,  sec.  55,  p. 

360 
whether  has  power  to  authorize  judge  disqualified  by  interest  to  hold 

court,  sec.  62,  pp.  403-406 


860  INDEX. 

Legislature — Continued. 

has  power  to  regulate  procedure  on  writ  of  error  or  appeal,  sec.  85, 
p.  697 
Liberty.     (See  Due  Process  of  Law.) 

meaning  of,  in  constitution  providing  for  due  process?  of  law,  sec.  33, 
p.  209 

Liens- 
action  to  enforce  specific,  constructive  notice  allowed,  sec.  38,  p.  270 
against  vessels,  how  and  through  what  courts  may  be  enforced,  sec. 
70,  pp.  483-487 
Limited  Jurisdiction.     (See  Courts,  Inferiou  Courts;   Special  .Juris- 
diction'.) 
distinction  between  and  special,  sec.  7,  p.  14 
facts  necessary  to  bring  case  within,  must  appear,  sec.  20,  p.  91 
Local  Actions.     (See  Actions;  Change  of  Venue;  Judgments.) 


M 

Mail- 
service  of  process  by,  what  sufficient  proof  of,  sec.  39,  pp.  289,  290 

Mandamus- 
judge  may  be  compelled  to  act  by,  sec.  62,  p.  411 
was  formerly  common-law  writ,  sec.  80,  p.  614 

now  generally  statutory  writ  of  common-law  nature,  sec.  80,  p.  614 
nominally  a  prerogative  writ,  sec.  80,  p.  614 
but  considered  a  writ  of  right,  sec.  80,  pp.  614,  615 
in  what  sense  an  extraordinary  remedy,  sec.  80,  p.  615 
whether  issuable  only  within  discretion  of  court,  sec.  80,  pp.  615, 

616 
writ  essentially  the  same  in  all  the  states,  sec.  80,  p.  616 
may  issue  against  all  classes  of  officers,  sec.  80,  pp.  616,  617 
what  acts  may  be  compelled  by,  sec.  80,  pp.  617,  618 
matter  of  discretion  can  not  be  controlled  by,  sec.  80,  p.  617 
can  not  be  used  as  writ  of  error,  sec.  80,  p  6l8 
exception  as  to  setting  aside  non-appealable  order,  sec.  80,  p.  618 
will  issue  on  showing  of  abuse  of  discretion,  sec.  80,  pp.  618,  619 
remedy  by  ordinary  proceeding,  when   will   defeat  right  to,  sec.  80, 

p.  619 
can  not  issue  for  obligation  growing  out  of  contract,  sec.  80,  p.  619 
or  affecting  mei'e  private  right,  sec.  80,  pp.  619,  620 
other  remedy  does  not  affect  right  to,  in  some  states,  sec.  80,  p.  619 
sometimes  said  only  ministerial  duties  may  be  enforced  by,  sec.  80, 

p.  620 
but  may  enforce  judicial  duties,  sec.  80,  p.  620 
with  exception  that  can  not  control  discretion  or  judgment,  sec.  80, 

p.  620 
what  acts  a  court  or  judge  may  be  compelled  to  perform,  sec.  80,  pp. 

620-623 
where  refuses  to  act  at  all,  sec.  80,  p.  620 
so  where  special  judge  refuses  to  act,  sec.  80,  p.  621 
if  duty  to  act  imperative,  character  of  act  immaterial,  sec.  80,  p.  623 
writ  used   to  compel  payment  of  amount  due  from  public  corpora- 
tion, sec.  80,  p.  624 
or  to  levy  a  tax  for  such  purpose,  sec.  80,  p.  624 
but  not  to  collect  simple  debt  from  corporation,  sec.  80,  p.  624 


INDEX.  861 

Mandamus  —  Continued. 
federal  court  judgment  for  amount  must  first  be  recovered,  sec.  80, 

p.  624 
how  far  used  in  matters  aflfecting  title  to  office,  sec.  80,  p.  624 
attorney  disbarred  may  be  restored  by,  when,  sec.  80,  p.  624 
may  be  used  to  compel  acceptance  of  office  when  elected  to,  sec.  80, 

pp.  624,  625 
jurisdiction  of  federal  courts  to  issue,  sec.  80  p.  62.5 
power  of  appellate  courts  to  issue,  sec.  80,  pp.  625-627 
as  against  non-residents,  constructive  notice  may  be  given,  sec.  80, 

p.  627 
power  over  inferior  courts  confined  to  territorial  limits,  sec.  80,  p. 

627 
proceedings  in,  are  not  special  cases,  sec.  80,  p.  627 
power  of  judges  to  issue  at  chambers,  sec.  SO,  p.  627 
power  to  issue  usually  confined  to  superior  courts,  sec.  80,  p.  627 
Maritime  Courts.     (See  Admiralty  and  Maritime  Jurisdiction.) 
jurisdiction  of,  sec.  5,  p.  6 

Maritime  Jurisdiction.     (See  Admiralty  axd  Maritime  Jurisdiction; 
Jurisdiction'.) 

Married  Women- 
service  of  process  on,  how  made,  sec,  37,  p.  265 
on  husband,  when  sufficient  service  on  wife,  sec.  37,  p.  260 
entitled  to  notice  the  same  as  any  other  person,  sec.  37,  p.  266 

Means  of  Acquiring  Jurisdiction,  generally— 

notice  in  some  form  necessary,  sec.  32,  p.  202;  sec.  33,  p.  211 
pleading  amended,  new  notice  necessary,  when,  sec.  32,  p.  202 
manner  of  giving  notice  regulated  by  statute,  sec.  32,  p.  202 
personal  notice,  when  necessary,  sec.  32,  p.  203 ;  sec.  33,  pp.  213,  214 
when  constructive  notice  allowed,  sec.  32,  pp.  203,  204 
what  must  be  shown  to  authorize,  constructive,  sec.  32,  p.  203 
notice  other  than  process  of  court,  when  allowed,  sec.  32,  pp.  204, 

205 
notice  may  be  waived,  sec.  32,  pp.  205,  206 
Military  Courts.    (See  Courts.) 

Ministerial  Acts — 

what  are,  sec.  29,  p.  185 

how  far  may  be  controlled  or  enforced  by  courts,  sec.  29,  pp.  183,  185 

courts  or  judges  can  not  be  compelled  to  perform,  sec.  29,  p.  194 

issuing  summons  is,  sec.  36,  p.  247 

when  judge  may  perform,  sec.  55,  p.  362 

will  be  enforced  by  mandamus,  sec.  80,  p.  620 

Minors- 
how  served  with  process,  sec.  37,  p.  264 

Mistake- 
ground  of  equitable  jurisdiction,  sec.  9,  p.  24 

Mortgages.     (See  Forclosure  of  Mortgages.) 

foreclosure  of,  constructive  notice  allowed,  sec.  38,  p.  270 

Motions— 

when  cause  dismissed  on,  for  want  of  jurisdiction,  sec.   22,  pp.  106, 

109,  112,  113 
court  may  dismiss  on  its  own,  sec.  22,  pp.  108,  111 
in  arrest  of  judgment,  when  objection  to  jurisdiction  raised  bv,  sec. 

22,  p.  109 
to  vacate  judgment  for  want  of  jurisdicticn,  sec.  22,  pp.  Ill,  118 


862  INDEX. 

Motion — Continued. 

for  non-suit  on  same  ground,  sec.  22,  p.  112 

motion  to  set  aside  judgment  when  a  direct  attack,  sec.  22,  p.  119 
to  dismiss  appeal,  when  question   of  jurisdiction   may  be  raised   by, 
sec.  22,  p.  114 
and  to  vacate  judgment,  sec.  22,  p.  114 
Municipal  bonds.     (See  Bonds.) 

on  what  grounds  courts  of  equity  will  enjoin  issuance  or  sale  of,  sec. 
79,  pp.  606,  608 

N 
Naturalization— 

in  what  courts  jurisdiction  vested,  sec.  89,  p.  737 

extent  of  discretion  vested  in  courts  as  to,  sec.  89,  pp.  737-739 

power  to  provide  for  exclusively  in  congress,  sec.  89,  p.  737 

preliminary  proceedings  before  clerk  ministerial,  sec.  89,  p.  739 

when  preliminary  declaration  dispensed  with,  sec.  89,  p.  7o9 

final  proceedings  judicial  and  adjudication  conclusive,  sec.  89,  p.  739 

certificate  how  may  be  overthrown,  sec.  89,  pp.  739,  740 

proceeding  to  annul  in  what  court  may  be  prosecuted,  sec.  89,  p.  740 

how  adjudication  can  be  shown,  sec.  89,  p.  740 

when  will  be  presumed,  sec.  89,  p.  740 

power  of  courts  to  amend  their  records  in  proceedings  for,  sec.  89,  p. 

740 
when  certificate  of  admission  takes  effect,  sec.  89,  pp.  740,  741 
nature  and  character  of  jurisdiction  of  state  courts  in,  sec.  89,  p.  741 
what  are  courts  of  recoi'd  within  tlie  meaning  of  the  law  authoriz- 
ing, sec.  89,  p.  741 
necessary  qualifications  of  court  to  grant,  sec.  89,  p.  742 
where  declaration  of  intention  may  be  made,  sec.  89,  p.  742 
misnomer  of  applicant,  effect  of.  sec.  89,  p.  742 

Ne  Exeat  and  Arrest  and  Bail— 

What  is,  sec.  78,  p.  581 

not  confined  to  equitable  actions,  sec.  78,  p.  582 

nature  of  demand  for  which  will  issue,  sec.  78,  p.  582 

statutory  proceedings  of  arrest  and  bail  to  what  kinds  of  actions  ap- 
plicable, sec.  78,  p.  583 

provision  of  constitution  against  imprisonment  for  debt,  effect  of, 
sec.  78,  p.  583 

remedy  usually  confined  to  cases  of  fraud,  concealment  of  property, 
or  breach  of  fiduciary  obligation,  or  tort,  sec.  78,  p.  583 

statutes  have  increased  classes  of  remedies  in  which  may  be  had,  sec.^ 
78,  p.  584 

arrest  and  bail,  object  and  purpose  of,  sec.  78,  pp.  584,  585 

effect  of  codes  on  powers  of  court.s  of  equity  in,  sec.  78,  p.  585 

similar  to  attachment,  when,  sec.  78,  p.  585 

petition  for  what  must  show,  sec.  78,  p.  585 

affidavit  and  undertaking  necessary,  sec.  78,  p.  586 

when  may  be  commenced,  sec.  78,  p.  586 

what  affidavit  must  show,  sec.  78,  p.  586 

when  property  must  be  shown  to  be  subject  to  execution,  sec.  78,  pp. 
586,  587 

in  equity  when  and  how  commenced,  sec.  78,  p.  587 

not  a  mere  provisional  remedy,  sec.  78,  p.  587 

statutes  must  be  strictly  complied  with,  sec.  78,  p.  587 

defective  affidavit  or  petition  may  be  amended,  sec.  78,  p.  587 

so  of  undertaking,  sec.  78,  p.  587 

where  writ  may  issue,  sec.  78,  p.  588 


INDEX.  .  863 

Ne  Exeat  and  Arrest  and  Bsiil— Continued. 

not  allowed  in  equity  if  adequate  remedy  at  law,  sec.  78,  p.  588 

and  rule  the  same  under  statutory  arrest  and  bail,  sec.  78,  p.  588 
New  Trials.     (See  New  Trials  and  Vacation'  of  Judgments.) 
New  Trials  and  Vacation  of  Judgments— 

by  what  means  party  may  bp  relieved  from  erroneous  or  void  judg- 
ment, sec.  84,  pp.  670,  671 

audita  querela  almost  obsolete,  but  exists  in  some  states,  sec.  84,  p.  671 
its  objects,  sec.  84,  p.  671 

power  to  grant  new  trials  inherent,  sec.  27,  p.  180;  sec.  84,  p.  671 

and  can  not  be  taken  away  by  statute,  sec.  84,  p.  671 

whether  inferior  courts  possess,  sec.  84,  pp.  671,  672 

distinction  made  between  power  to  vacate  and  modify  and  to  grant 
new  trials,  sec.  84,  p.  672 

inherent  powers  may  be  limited  and  controlled,  and  this  has  been 
done,  sec.  84,  pp.  672,  673 

statutes  provide  the  time  when  and  means  by  which  relief  may  be 
had,  sec.  84,  p.  673 

statute  not  grants  of  but  limitations  upon  the  power,  sec.  84,  p.  673 

extent  and  object  of  the  inherent  power  to  give  relief,  sec.  84,  p.  673 

for  mere  errors,  within  legislative  control,  sec.  84,  p.  673 

courts  have  control  over  their  judgments  until  end  of  term,  sec.  84, 
pp.  673,  674 

and  may,  within  the  term,  vacate  or  modify  its  judgments  or  grant 
new  trials,  sec  84,  p.  674 

after  term,  judgments  final  and  power  over  ceases,  sec.  84,  p.  674 

and  can  only  be  regained  by  new  proceedings,  sec.  84,  p.  674 

what  necessary  to  give  jurisdiction  of  new  proceeding,  sec.  84,  p.  674 

notice,  how  served,  sec.  84,  p.  674 

may  be  waived,  sec.  84,  p.  674 

requirement  that  judgment  must  be  vacated  during  term,  may  be 
waived,  sec.  84,  p.  674 

when  proceeding  for  new  trial  under  statutes  must  be  commenced, 
sec.  84,  pp.  675.  676,  678 

if  court  acts  after  time  limited,  proceedings  void,  sec.  84,  p.  676 
some  cases  to  the  contrary,  sec.  84,  p.  676 

time  can  not  be  extended  unless  authorized  by  statute,  sec.  84,  p.  676 
except  by  consent  of  parties,  sec.  84,  p.  676 

party  may  be  relieved  from  a  failure  to  act  in  time  in  case  of  fraud 
or  mistake,  sec.  84,  pp.  676,  677 

statutory  exceptions  to  rule  that  proceedings  must  be  commenced 
within  certain  time,  sec.  84,  pp.  676,  677 

exceptions  independently  of  statute,  sec.  84,  p.  677 

statute  limiting  time,  how  far  binding  on  the  courts,  sec.  84,  pp.  677, 
678 

judgment  may,  by  statute,  be  made  final  before  end  of  term,  sec.  84, 
p.  679 

appeal  does  not  deprive  court  of  power  over  judgment  during  term, 
sec.  84,  p.  680 

statutes  are  limitations  oi  grounds  for  new  trial  and  vacation  of  judg- 
ment as  well  as  to  time,  sec.  84,  pp.  680,  681 

limitations  applv  onlv  to  erroneous  and  not  to  void  judgments,  sec. 
84,  p.  681     '         ' 

latter  open  to  attack  at  any  time,  sec.  84,  p.  781 

but  not  necessarily  where  invalidity  does  not  appear  on  face  of  rec- 
ord, sec.  84,  p.  681 


864  .  INDEX. 

New  Trials  and  Vacation  of  Judgments — Continued. 

right  to  new  trial  confined  to  grounds  specified  in  statute,  sec.  84,  p. 

682 
and  made  the  basis  of  the  motion,  sec.  84,  p.  682 
courts  of  equity  may  grant  new  trials  and  vacate  judgments  of  other 

courts,  sec.  84,  pp.  682,  683 
how  far  and  for  what  causes  such  power  will  be  exercised,  sec.  84,  pj). 

682,  683 
how  far  one  court  may  vacate  or  set  aside  proceedings  of  court  of 

concurrent  jurisdiction,  sec.  84,  pp.  683,  684 
can  not  upon  mere  motion,  sec.  84,  p.  683 
but  may  by  independent  action,  sec.  84,  p.  683 
not,  however,  while  action  is  still  pending  in  the  other  court,  sec.  84, 

p.  683 
and  adequate  remedy  by  motion  in  court  rendering  judgment,  other 

court  will  not  interfere,  sec.  84,  p.  683 
but  refusal  does  not  rest  on  want  of  jurisdiction,  sec.  84,  pp.  683,  684 
federal  courts,  power  of  to  set  aside  proceedings  of  state  courts,  sec. 

84,  p.  684 
statutes  authorizing  vacation  or  review  do  not  take  away  general 

equity  jurisdiction  to  vacate  and  annul,  sec.  84,  p.  684 
power  does  not  extend  to  correction  of  errors,  sec.  84,  p.  685 
courts  of  chancery  proceed  on  equitable  grounds,  sec.  84,  p.  685 
will  not  vacate  because  void  unless  inequitable,  sec.  84,  p.  685 
what  character  of  fraud  will  authorize  vacation  of  judgment,  sec.  84, 

pp.  685,  688 
must  be  extrinsic  or  collateral  to  the  matter  determined  by  the  court, 

sec.  84,  p.  685 
fact  that  judgment  procured  by  purjury  or  false  evidence  will  not 

authorize,  sec.  84,  pp.  686,  687 
different  rule  in  some  states,  sec.  84,  p.  687 
court  of  equity  will  not  interfere  if  other  adequate  remedy,  sec.  84, 

p.  688 
proceeding  to  vacate  can  not  retry  questions  of  law  or  fact,  sec.  84, 

p.  688  _ 

appropriate  remedy  in  court  of  equity  by  bill  of  review,  sec.  84,  p. 

688 
remedy  abolished  in  some  states,  sec.  84,  p.  688 
but  original  action  of  like  nature  may  be  prosecuted,  sec.  84,  p.  688 
new  trial  may  be  granted  of  part  of  issues,  sec.  84,  p.  688 
but  not  so  as  to  finding  of  part  of  facts,  sec.  84,  p.  688 
proceeding  to  vacate  by  court  rendering  usually  by  motion,  sec.  84, 

p.  689 
when  relief  can  not  be  obtained  by  action  in  another  court,  sec.  84, 

p.  689 
when  only  by  independent  action,  sec.  84,  pp.  689,  690 
for  relief  on  account-  of  errors  remedy  is  by  motion  for  new  trial  in 

court  rendering  judgment,  sec.  84,  p.  690 
writ  of  coram  nobis  what  is  and  objects  of,  sec.  84,  p.  690 
and  writ  of  recordari,  sec.  84,  p.  690 
remedy  by  motion  held  a  direct  attack,  sec.  84,  p.  690 
after  final  determination  of  action  to  what  remedy  by  motion  con- 
fined, sec.  84,  p.  690 
when  independent  action  necessary,  sec.  84,  p.  690 
order  vacating  not  generally  reviewable  by  court  making  it,  sec.  84, 

pp.  690.  691 
but  may  be  set  aside  during  term,  sec.  84,  p.  691. 


INDEX.  865 

New  Trials  and  Vacation  of  Judgments — Continued. 

to  what  court  and  where  motion  for  new  trial  must  be  made,  sec.  84, 

p.  691 
action  to  annul  where  must  be  brought,  sec.  84.  p.  691 
in  federal  courts  decision  on  not  subject  to  review,  how  far  motion 

for  is,  sec.  84,  p.  691 
addressed  to  discretion  of  court,  sec.  84,  p.  691 
exception  to  ruling  on,  how  taken,  sec.  84,  p.  691 
new  trial  as  of  right,  when  allowed,  sec.  84,  p.  692 
whether  new  trial  can  be  had  after  entry  of  judgment,  sec.  84,  p.  692 
when  affirmance  on  appeal  not  a  bar  to  motion,  sec.  84,  p.  692 
legislature  may  regulate  number  of  new  trials,  sec.  33,  p.  222 

Notaries  Public — 

whether  have  power  to  punish  for  contempt,  sec.  72,  p.  501 

Notice- 
in  proceedings  in  rem,  how  given,  sec.  14 

personal  service  not  necessary  in  proceedings  in  rem,  sec.  14,  p.  44 
failure  to  give,  does  not  render  judgment  m  rem  void,  sec.  14,  p.  44 
non-resident  may  be  personally  served  within  the  state,  sec.  14,  p.  47 
alone  not  sufficient  to  give  jurisdiction  over  property,  sec.  14,  p.  48 
only  parties  notified  affected  by  decree,  sec.  14,  pp.  49,  50 
action  purely  in  rem,  notice  may  be  general,  sec.  14,  p.  50 
manner  of  giving  is  statutory,  sec.  14,  p.  51 
state  has  authority  to  prescribe  notice  to  be  given  to  its  own  citizens, 

sec.  15,  p.  52 
may  authorize  process  of  court  having  jurisdiction  over  county  to 

extend  over  state,  .sec.  15,  p.  53 
but  can   not  authorize  extension  of    process   into   other   state   or 

country,  sec.  15,  p.  53 
may,  with  consent  of  other  state  or  country,  sec.  15,  p.  53 
decree  foreclosing  mortgage  may  be  rendered  on  constructive,  sec. 

15,  p.  56 
failure  to  give  in  proceedings  in  rem  deprives  court  of  jurisdiction, 

sec.  24,  p.  154 
presumptions  in  case  of  constructive,  sec.  25,  pp.  159,  160,  161 
in  some  form  necessary  to  give  court  jurisdiction,  sec.  32,  p.  202 
manner  of  giving,  regulated  by  statute,  sec.  32,  p.  203 
personal  usuallv  required,  sec.  32,  p.  203 
when  substituted  authorized,  sec.  32,  pp.  203,  204,  214,  215 
may,  if  authorized,  be  given  in  some  other  way  than  by  ordinary 

process,  sec.  32,  pp.  203,  204 
in  an  action,  may  be  waived  by  a  party,  sec.  32,  pp.  205,  206 
what  necessary  to  constitute  due  process  of  law,  sec.  33,  pp.  211-214 
when  judgment  may  be  entered  without,  sec.  33,  pp.  212,  213 
when  law  itself  is  notice,  sec.  33,  p.  213 
necessary  in  eminent  domain,  sec.  33,  p.  213 
when  court  acts  on  discretion,  without  evidence,  not  necessary,  sec. 

33,  p.  213 
personal,  within  the  state,  when  necessary,  sec.  33,  p.  214 
general,  to  all  persons  when  sufficient,  sec.  33,  p.  214 
when  not  necessary  before  action  taken  against  property,  sec.  33,  p. 

220 
assessments  for  public  improvements  and  taxes,  what  necessary,  sec. 

33,  p.  221 
must  be  authorized  by  law  or  is  no  notice,  sec.  36,  p.  248 
constructive,  defined,  sec.  38,  p.  266 

55 


86G  INDEX.  , 

Notice —  Continued. 

when  and  how  given,  sec.  38.     (See  Constructive  Service  of  Pro- 
cess.) 
constructive  may  be  substitute  for  personal,  when,  sec.  38,  p.  267 
necessity  for,  in  attachment,  sec.  74,  pp.  538,  539 

in  garnishment,  sec.  75,  pp.  548,  550 
necessary  in  proceedings  for  sale  of  real  estate,  sec.  76,  p.  563 
necessary  in  arbitration,  sec.  77,  pp.  574,  578 
and  of  motion  for  new  trial,  sec.  84,  p.  674 
and  in  appeals,  sec.  88,  p.  732 

0 
Officer— 

of  one  court  exceeding  his  writ  may  be  sued  for  trespass  in  another, 

sec.  17,  p.  69 
but  property  taken  by,  can  not  be  recovered  in  any  court  other  than 

that  from  which  the  writ  runs,  sec.  17,  p.  69 
return  of,  effect  of,  in  sustaining  jurisdiction,  sec.  20,  pp.  116,  117; 

sec.  39,  p.  287 
appointment  of,  an  executive  function,  sec.  29,  p.  193 
but  courts  and  legislatures  may  appoint  their  own,  sec.  29,  pp.  193, 

194 
to  whom  summons  should  be  directed,  sec.  36,  p.  248 
by  whom  service  of  process  must  be  made,  sec.  37,  p.  252 
authorized  to  appoint  special  deputies  or  bailiffs,  sec.   37,  pp.  252, 

253 
power  of  general  deputy  appointed  by,  sec.  37,  p.  253 
can  an  officer  serve  process  in  his  own  behalf,  sec.  37,  p.  255 
return  of,  as  basis  for  publication  of  constructive  notice,  sec.  38,  p. 

279 
as  proof  of  service  of  process  and  its  effect,  sec.  39,  pp.  287-297 

(See  Service  of  Process.) 
return  of,  may  be  amended,  sec.  39,  p.    292 
de  facto,  what  is,  sec.  60,  pp.  379-382 

how  may  be  removed  from  office,  sec.  60,  p.  383 
how  and  in  what  courts  or  tribunals,  may  be  impeached,  sec.  71,  p. 

4S7 
when  acts  of  will  be  enjoined  by  court  of  equity,  sec.  79,  p.  613 
title  to  office  can  not  be  determined  by  injunction,  sec.  79,  p.  613 

Orders— 

for  publication,  what  sufficient,  sec.  38,  pp.  280,  281 

for  change  of  venue,  effect  of,  sec.  51,  pp.  348-352 

what  judges  may  make  at  chambers,  sec.  58,  p.  372-376 

what  may  make  in  vacation,  sec.  59,  pp.  376-378 
Order  for  publication.     (See  Constructive  Service  of  Process.) 

what  sntficient,  sec.  38,  pp.  280,  281 
Original  Jurisdiction.     (See  Appellate  Jurisdiction;  Jurisdiction.) 

defined,  sec.  9,  p.  28,  note  1;   sec.  21,  p.  97 

court  may  have  appellate  and,  sec.  21,  p.  98 

Original  Writ     (See  Process.) 

common  law  action  was  commenced  by,  sec   35,  p.  234 

issued  out  of  chancery,  sec.  35,  p,  234 

defined,  sec,  35,  p.  234 

was  the  foundation  of  the  action,  sec.  35,  p.  235 

other  wiits  following  and  objects  of,  sec.  35,  p.  235 

means  of  enforcing  obedience  to,  sec.  35,  p.  236 

has  become  obsolete,  sec.  35,  p.  236 


INDEX.  867 


Pardons- 
effect  of  on  judgment  of  court,  sec.  90,  p.  742 
power  is  not  judicial,  sec.  90,  p.  742 
is  an  executive  power,  sec.  90,  p.  742 
defined,  sec.  90,  p.  742 
includes  power  to  reprieve,  sec.  90,  p.  743 
but  not  of  commutation,  sec.  90,  p.  743 
in  whom  vested,  sec.  90,  p.  743 
given  by  constitution  can  not  be  taken  away  by  statute,  sec.  90,  p. 

743 
can  not  be  exercised  by  legislature,  sec.  90,  p.  743 
generally  withheld  in  cases  of  impeachment  and  treason,  sec.  90,  p. 

744 
at  what  stage  of  proceedings  may  be  exercised,  sec.  90,  p.  744 
can  not  be  enforced  against  consent  of  party  to  be  benefited,  sec.  90 

p.  744 
conditional,  effect  of,  sec.  90,  p.  754  ' 
once  granted  can  not  be  revoked  except  conditional  and  condition 

broken,  sec.  90,  p.  744 
power  to  recommit  for  violation  of  conditional,  by  whom  and  how 

exercised,  sec.  90,  p.  745 
notice  of  hearing  to  recommit  when  necessary,  sec.  90,  p.  745 
statutes  authorizing  deductions  for  good  behavior  not  infringement 

of  pardoning  power,  sec.  90,  p.  745 
procured  by  fraud  is  void,  sec.  90,  p.  745 

Parties- 
acts  of  can  not  divest  court  of  jurisdiction,  sec.  24,  p.  155 
change  of  residence   of,  after  Buit  brought,  does  not  aflfect  jurisdic- 

diction,  sec.  24,  p.  155 
actions  affecting  status  of,  constructive  notice  allowed,  sec.  38,  p.  270 
death  of  while  publication  pending,  eflfect  of,  sec.  38,  p.  284 
new  parties,  when  must  be  served  with  process,  and  how,  sec.  42,  p. 

305 
death  of,  when,  new  parties  must  be  made,  sec.  42,  p.  307 
made  bv  cross.complaint  when  service  of  process  necessary,  sec.  44, 

p.  324 
how  service  made,  sec.  44,  p.  324 
whether  ward  necessary  in   proceeding  by  guardian  for  sale  of  real 

estate,  sec.  76,  p.  564 
or  heir  to  proceeding  by  executor  or  administrator,  sec.  76,  p.  564 
who  necessary  on  appeals,  sec.  88,  p.  733 

Partition- 
general  principles  aff'ecting  sale  of  real  estate  in  proceedings  for,  sec. 
76,  p.  572 

Partners- 
how  served  with  process,  sec.  37,  p.  263 

Perpetuation  of  Testimony— 

a  brancli  of  equity  jurisdiction,  sec.  6,  p.  25 

how  far  superseded  bv  statutory  provisions  for  taking  testimony,  sec. 
9,  p.  27;    sec.  18,  pp.  74-81 
Personal  Actions— 

jurisdictioi  in,  liow  obtained,  sec.  11,  p.  31 

are  transitory,  sec  12,  p   35 

must  b«  brought  where  defendant  resides,  sec.  12,  p.  35 


868 


INDEX. 


Personal  Actions — Continued. 

exceptions  in  case  of  corporations,  sec.  12,  p.  35 

sometimes  where  defendant  is  found,  sec.  12,  p.  35 

courts  may  entertain  between  where  parties  non-residents,  sec.  12, 

p.  35 
but  not  bound  to  do  so,  sec.  12,  p.  35 
when  may  be  brought  in  any  county,  sec.  12,  p.  36 
in  divorce  cases  brought  where  plaintiff  resides,  sec.  12,  p.  36 
court  in  which  action  brought  not  having  jurisdiction  of,  appellate 

court  has  not,  sec.  12,  p.  36 
personal  service  within  the  state  necessary  in,  sec.  33,  p.  214;  sec.  38, 

p.  267  _ 

can  not  be  maintained  on  constructive  service,  sec.  38,  p.  267 
whether  proceedings  by  executor  or  guardian  to  sell  real  estate  is, 

sec.  76,  p.  565 

Personal  Judgment- 
can  not  be  rendered  against  non-resident  on  constructive  notice,  sec. 

13,  p.  42 
must  be  personal  service  within  state,  to  authorize,  sec.  13,  p.  42 
personal  service  of  notice  within  the  state  necessary  to  authorize, 
sec.  33,  p.  214 
may  states  authorize  against  its  own  citizens  without,  sec.  33,  pp. 
214,  215 
defined,  sec.  38,  p.  268 
can  not  be  rendered  on  constructive  notice,  sec.  38,  p.  267 

Personal  Service.     (See  Service  of  Process  ) 
of  writ,  how  made,  sec.  37,  p.  262 
out  of  the  state  is  constructive,  sec.  38,  p.  286 

when  allowed,  sec.  38,  p.  286 
proof  of,  how  made,  sec.  39,  p.  287 

Petition — 

to  inferior  court,  what  must  show  to  give  jurisdiction,  sec.  23,  p.  126 
effect  of  allegations  in,  as  against  recitals  in  record,  sec.  23,  p.  126 
filing  of,  when  gives  jurisdiction  without  notice,  sec.  38,  pp.  280,  281 
for  sale  of  real  estate  is  foundation  of  jurisdiction,  sec.  76,  p.  558 
what  should  contain,  sec.  76,  pp.  558,  559,  561 
Pleadings.     (See  Complaint;  Courts;  Default;  Judgments;  Jurisdic- 
tion.) 
judgment  rendered  without  pleading  or  other  statement,  void,  sec.  8, 

p.  23 
amendment  of  complaint  after  publication,  effect  of  on  judgment  by 

default,  sec.  8,  p.  22 
may  be  waived  by  parties,  how,  sec.  12,  p.  33 
by  agreed  statement  of  facts,  sec.  12,  p.  83 
of  plaintiff,  controls  in  determining  jurisdiction  as  to  amount,  sec. 

16,  pp.  59,  64 
amount  alleged  not  always  conclusive,  sec.  16,  pp.  59,  63 
more  than  one  count,  what  the  rule,  sec.  16,  p.  59 
what  part  of  pleading  determines  amount,  sec.  16,  pp.  59,  66 
account  filed  as  pleading.,  footing  controls,  sec.  16,  p.  60 
verdict,  when  controls  pleading  as  to  amount  in  controversy,  sec.  16, 

p.  60 
counterclaim  and  set-off,  effect  of  as  to  jurisdictional  amount,  sec.  16, 

pp.  61,  63 
to  merits,  is  an  appearance  and  waives  service  of  process,  sec.  34,  p. 

227 


INDEX.  ■  869 

"PleAiingS— Continued. 

and  waives  pending  objection  to  Jurisdiction,  sec.  34,  p.  227 
and  withdrawal  of,  does  not  affect  question,  sec.  34,  p.  227 
amendment  of,  by  making  new  parties,  when  service  of  process  nec- 
essary, sec.  42,  p.  305 

Plea  in  Abatement— 

when  question  of  jurisdiction  may  be  raised  by,  sec.   22,  pp.  106,  109 

strictly  a  plea  to  the  jurisdiction,  sec.  22,  p.  109 
when  proper  in  attachment  proceedings,  sec.  74,  p.  545 

Pleas  to  the  Jurisdiction — 

when  question  of  jurisdiction  may  be  raised  by,  sec.  22,  p.  109 

Police  Power- 
how  far  may  be  exercised  without  taking  property  without  due  pro- 
cess of  law,  sec.  33,  p.  221 

Presumptions— 

when  jurisdiction  of  court  will  be  presumed,  sec.  12,  p.  32;  sec.   22 

p.  116;   sec.  23,  pp.  123,  144;  sec.  25 
will  establish  jurisdiction  without  other  proof,  sec.  23,  pp.   123,  124 
no  presumption,  facts  necessary  to  show  jurisdiction  must  be  proved, 

sec.  23,  p.  123 
in  case  of  domestic  judgment  conclusive,  of  foreign  prima  facie,  sec 

23,  pp.  123,  124,  125,  141,  144;   sec.  26,  p.  169 
presumption  that  law  of  another  state  same  as  one  where  question 

arises,  sec.  23,  p.  124 
must  prove  court  of  another  state  one  of  general  jurisdiction  to  set 

benefit  of  presumption,  when,  sec.  23,  p.  125 
may  be  overcome  by  proof,  sec.  23,  pp.  127-140 
court  of  general  jurisdiction  acting  specially,  no  nresumption,  sec. 

23,  pp.  142,  144;  sec.  25 
jurisdiction  of  inferior  courts  not  presumed,  sec.  23,  pp.  142,  143,  144 
general  rule  as  to  presumptions,  sec.  25,  p.  155 

difference  respecting,  between  courts  of  general  and  of  special  juris- 
diction, sec.  35,  p.  156 
as  to  court  of  general  jurisdiction  acting  specially,  sec.  25,  pp.  156,  157 
can  not  prevail  against  the  record,  sec.  25,  pp.  157,  163 
in  case  of  constructive  service,  sec.  25,  pp.  J  59,  160,  161 
in  case  of  domestic  court,  what  presumed,  sec.  25,  pp.  162,  163 

of  federal  courts,  sec.  25,  p.  162 
difference  between  domestic  and  foreign  judgments,  as  to  effect  of 

sec.  25,  p.  163 
can  be  indulged  only  when  record  is  silent,  sec.  25,  p.  163 
in  case  of  defective  service,  sec.  25,  p.  164 
that  jurisdiction  once  obtained  was  properly  exercised,  sec.  25,  pp. 

166,  167 
in  case  of  judgment  by  default,  sec.  25,  pp.  167,  168 
that  real  estate  within  jurisdiction,  sec.  25,  p.  168 
as  to  inferior  court  when  jurisdiction  has  attached,  sec.  25,  p.  168 
in  favor  of  service  of  process,  sec.  37,  pp.  254,  255 
as  affecting  proof  of  service  of  process,  sec.  39,  p.  295 
that  new  parties  by  amendment  were  served  with  process,  sec.  42,  ]>. 

306 
that  judge  acting  out  of  jurisdiction  had  authority  to  act.  sec.  57,  p. 

371 
that  special  judge  was  regularly  appointed,  sec.  61,  p.  389 
that  was  intention  of  legislature  that  common  law  should  prerail, 

sec.  65,  p.  424 


870  INDEX, 

Presumptions — Cmiinued. 

in  favor  of  jurisdiction  in  cattachment  proceedings,  sec.  74,  p.  547 
in  sales  of  real  estate,  sec.  76,  pp.  554,  555,  561 

Probate  Jurisdiction— 

formerly  exercised  by  what  courts,  sec.  67,  p.  431 

in  what  court  now  in  England,  sec.  67,  p.  431 

in  this  country  in  what  courts  vested,  sec.  67,  p.  432 

now  regulated  by  constitutions  and  statutes,  sec.  67,  p.  432 

broader  than  that  exercised  by  ecclesiastical  courts,  sec.  67,  p.  432 

vested  in  courts  of  general  jurisdiction,  usually  held  to  be  separate 

and  distinct,  sec.  67,  pp.  432,  433 
no  distinctively  probate  courts  except  in  name,  sec.  67,  p.  433 
standing  of  courts  exercising,  whether  of  superior  or  limited  juris- 
diction, sec.  67,  pp.  433-435 
generally  held  to  be  of  limited  but  not  technically  inferior,  sec.  67, 

pp.  433,  434 
presumptions  in  favor  of  proceedings  of,  sec.  67,  p.  434 
recital  in   record  showing  jurisdiction,  effect  of,  sec.  67,  p-p.  434,  -J 35 
distinction  between  common  law,  equity,  and  statutory  jurisdiction 

does  not  exist  in  reason,  sec.  67,  p.  435 
held  in  some  cases  to  be  inferior  courts,  sec.  67,  p.  435 

in  others,  that  proceedings  not  conclusive,  sec.  67,  p.  436 
held  to  possess  power  to  set  aside  judgments  rendered  by  them,  sec. 

67,  p.  436 
cases  turn  upon   language  of  constitutions  and  statutes  as  to  stand- 
ard of  court,  seo.  67,  p.  437 
incidental  powers  whether  courts  possess  or  not,  sec.  67,  p.  437 
authority  to  grant  letters  of  administration  sometimes  granted  to 
clerk  of  court,  sec.  67,  p.  437 
but  his  acts  in  granting  are  ministerial,  sec.  67,  p.  437 
and  no  presumptions  in  favor  of,  sec.  67,  p.  437 
but  letters  granted  by  court  conclusively  presumed  facts  authorizing 

existed,  sec.  67,  p.  437 
letters  themselves  conclusive  evidence  that  were  rightly  issued  as 

against  collateral  attack,  sec.  67,  p.  437 
sometimes  held  to  be  prima  facie  evidence,  sec.  67,  p.  437 

some  states  statutes  make  letters  conclusive,  sec.  67,  pp.  437,  438 
but  such  statutes  declare  the  otherwise  existing  rule,  sec.  67,  p.  438 
doctrine  of  conclusiveness  extends  to  other  proceedings,  sec.  67,  p. 

438 
but  not  when  obtained  by  fraud,  sec.  67,  p.  438 
and  sometimes  confined  to  final  decrees  or  orders,  sec.  67,  p.  438 
court,  in  final  accounting,  may  correct  mistake  in  prior  proceedings, 

sec.  67,  p.  438 
decree  settling  final   account  and  discharging  executor  conclusive 

until  reversed,  sec.  67,  p.  438 
grant  of  letters  can  not  be  avoided  collaterally  for  incompetency  of 

applicant,  sec.  67,  pp.  438,  439 
grant  of  jurisdiction  in  "all  probate  matters,"  what  included  in,  sec. 

67,  pp.  439-445 
court  of  probate  defined,  sec.  67,  p.  439 
general  statement  of  powers  of,  sec.  67,  pp.  440,  441 
does  not  extend  to  controversies  between  estate  and  third  parties 

not  claiming  under  estate,  sec.  67,  p.  440 
or  where  right  depends  upon  question  over  which  has  no  jurisdic- 
tion, sec.  67,  p.  441 
when  may  pass  upon  question  of  title  to  real  estate,  sec.  67,  p.  441 


INDEX.  871 

Probate  Jurisdiction — Continued. 

and  as  to  legitimacy  of  children,  sec.  67,  p.  441 
may  distribute  to  third  party  claiming  under  heir,  sec.  67,  p.  441 
over  wills,  extent  of  jurisdiction,  sec.  67,  p.  442 

when  extends  to  validity  and  construction  of,  sec.  67,  p.  442 
estates  of  infants  and  persons  of  unsound  mind  when  have  jurisdic- 
tion over,  sec.  67,  p.  442 
formerly  belonged  to  courts  of  chancery,  sec.  67,  p.  442 
and  in  probate  courts  controlled  by  equity  rules,  sec.  67,  pp.  442, 
443 
distinction  between  guardians  appointed  by  court  and  testamentary 

guardians,  sec.  67,  p.  443 
efiFect  of  existing  testamentary  guardianship  over  power  to  appoint, 

sec.  67,  p.  443 
appointment  of  guardian  in  another  state  does  not  affect,  sec.  67,  p. 

443 
of  settlement  of  estates  formerly  in  chancery,  sec.  67,  p.  443 

how  grew  up,  sec.  67,  p.  443 
in  some  states,  concurrent  in  chancery  and  probate  courts,  sec.  67, 

pp.  443,  444 
extent  of  jurisdiction  of  courts  of  chancery  in  such  cases,  sec.  67,  p. 

444 
wholly  denied  in  some  cases  where  probate  court  exists,  sec.  67,  p. 

444 
other  cases  hold  is  a  part  of  grant  of  general  equity  jurisdiction  by 
constitution   and  can  not  be  made  exclusive  in  probate  court, 
sec.  67,  p.  445 
may  interpose  where  probate  court  incapable  of  giving  relief,  sec.  67, 

p.  445 
common  law  or  equity  jurisdiction  may  be  conferred  on  probate 
courts,  sec.  67,  pp.  445,  446 
cases  to  the  contrary,  sec.  67,  p.  445 
when  construction  of  will  peculiarly  within  chancery  jurisdiction, 

sec.  67,  pp.  446,  447 
courts  of  equity  no  jurisdiction  to  order  sale  of  legal  title  to  real 

estate  of  infant,  sec.  67,  p.  447 
when  and  to  what  extent  probate  court  held  to  be  court  of  equity, 

sec.  67,  p.  447 
in  some  states,  have  broad  power  to  deal  with  trusts  and  matters  of 
account,  sec.  67,  pp.  447.  448 
but  must  arise  in  settlement  of  estates,  sec.  67,  p.  448 
court  of  chancery  no  jurisdiction  over  purely  probate  matters  as  part 
of  general  equity  powers,  sec.  67,  p.  448 
formerly  belonged  in  England  to  ecclesiastical  courts,  sec.  67,  p. 
448 
and  passes  by  general  grant  of  probate  jurisdiction,  sec.  67,  p.  448 
grant  of  common  law  and  equity  jurisdiction  does  not  include,  sec. 
67,  pp.  448,  449 
powers  of  equity  and  probate  courts  depend  upon  constitutions  and 

statutes  in  different  states,  sec.  67,  p.  449 
difference  in  extent  of  powers  in  different  states,  sec.  67.  pp.  449, 

450 
general  equity  jurisdiction  in  federal  courts  in  settlement  _of  estates 
can  not  be  taken  away  or  limited  by  state  laws,  sec.  67,  p.  450 
exclusive  jurisdiction  vested  in  probate  court  does  not  affect,  sec. 

67,  p.  450 
nor  that  property  is  being  administered  in  state  court,  sec.  67,  p. 
450 


872  INDEX. 

Probate  Jurisdiction — Contimted. 

noi'  can  right  to  sue  administrator  or  executor  in  be  taken  away, 
sec.  67,  \).  451 
extent  of  jurisdiction  of  federal  courts,  sec.  67,  p.  451 
of  probate  depends  upon 

death  of  owner  of  the  estate, 

and  generally  upon  domicile  of  deceased  at  time  of  death, 
or  presence  of  property  of  deceased  within  jurisdiction,  sec.  67, 
pp.  452,  453 
whether  property  must  have  been  within  jurisdiction  at  time  of 

death,  sec.  67,  p.  452 
general  rules  as  to  place  where  proceedings  must  be  commenced, 

sec.  67,  pp.  452,  453 
when  court  first  assuming  jurisdiction  has  exclusive,  sec.  67,  p.  453 
death  of  owner  of  estate,  finding  of  by  court  does  not  give  jurisdic- 
tion, sec.  67,  p.  453 
if  owner  not  dead,  proceedings  void,  sec.  67,  p.  453 
as  to  domicil  and  presence  of  property,  are  questions  of  fact  and  find- 
ing conclusive,  sec.  67,  p.  453 
but  held  otherwise  in  some  states,  sec.  67,  pp.  453,  454 
when  letters  revoked  on  direct  attack,  sec.  67,  p.  454 
jurisdictional  facts  found,  not  void,  sec.  67,  p.  454 
letters  granted  by  interested  judge,  void,  sec.  67,  p.  454 
what  petition  in  probate  proceeding  must  show  as  to  jurisdictional 

facts,  sec.  67,  p.  454 
distinction  made  between  superior  and  inferior  courts  in  this  respect, 

sec.  67,  p.  454 
effect  where  statute  provides  failure  to  allege  shall  not  be  taken  ad- 
vantage of,  except  on  appeal,  sec.  67,  pp.  454,  455 
finding  that  applicant  for  letters  has  necessary  qualifications,  con- 
clusive, sec.  67,  p.  455 
letters  granted  to  stranger  before  time  limited  for  application  by 

relatives  held  void,  sec.  67,  p.  455 
court  granting  letters,  jurisdiction  of,  not  necessarily  exclusive  as  to 

all  matters  connected  with  estate,  sec.  67,  p.  455 
petition  for  sale  of  real  estate  may  be  filed  in  court  of  other  county, 

when,  sec.  67,  p.  455 
contest  of  will,  necessity  of  alleging  jurisdictional  facts,  sec.  67,  pp. 
455,  456 
proof  of  facts  obviate  failure  to  allege,  sec.  67,  p.  456 
letters  on  same  estate  may  be  granted  in  different  states,  sec.  67,  p. 

456 
powers  of  respective  administrators,  sec.  67,  p.  456 
grant  of  letters  of  administration  where  will  exists,  how  may  be  at- 
tacked, sec.  67,  p.  456 
letters  granted  in  one  state  have  no  force  in  another,  sec.  67,  p.  456 
power  of  admin  is  trato^r  to  sue  in  another  state,  sec.  67,  p.  456 
probate  of  will  conclusive  in  state  where  granted,  sec.  67,  p.  457 
is  proceeding  in  rem  and  binds  all  the  world,  sec.  67,  p.  457 
rule  as  to  conclusiveness  at  common  law,  sec.  67,  p.  457 
probate  not  proof  of  execution  of  will  according  to  laws  of  another 

state,  sec.  67,  p.  457 
proves  validity  only  so  far  as  affects  property  within  the  state,  sec. 

67,  p.  457 
whether  probate  court  may  vacate  its  own  order  of  probate,  sec.  67, 
pp.  457,  458 
generally  held  it  may,  sec.  67,  p.  458 


INDEX.  873 

Probate  Jurisdiction — Continued. 

power  to  revoke  incidental  to  jurisdiction  to  crant  letters,  sec.  67,  p. 

458 
when  court  of  chancery  may  set  aside  judgment  of  probate  court, 

sec.  67,  p.  458 
power  of  chancery  to  set  up  lost,  destroyed,  or  suppressed  will,  sec. 
67,  p.  458 
power  generally  denied  on  ground  is  strictly  probate  jurisdiction, 
sec.  67,  p.  458 
contest  of  wills,  extent  of  jurisdiction  in  case  of,  sec.  67,  p.  459 

only  question  will  or  no  will,  court  can  not  construe,  sec.  67,  p.  459- 
notice  to  heirs  and  parties  interested  necessary,  sec.  67,  p.  459 
will  can  not  be  granted  before  death  of  testator,  sec.  67,  p.  459 
no  law  authorizing  probate  at  time  of  death,  can  not  be  probated 

under  subsequent  statute,  when,  sec.  67,  p.  459 
probate  of  will  not  necessary  to  validity  of,  unless  made  so  by  stat- 
ute, sec.  67,  pp.  459,  460 
general  rule  finding  of  notice  conclusive,  sec.  67,  p.  460 
power  to  appoint  guardian  usually  confined  to  minors,  etc.,  residing 
within  jurisdiction,  sec.  67,  p.  460 
but  may  be  extended  by  law  to  non-residents,  sec.  67,  p.  460 
order  final  distribution  terminates  jurisdiction,  sec.  67,  p.  460 

and  is  conclusive  against  collateral  attack,  sec.  67,  p.  460 
probate  within  county,  but  not  at  county  seat,  not  void,  sec.  67  p. 

460 
general  rules  as  to  necessity  of  notice  applies  to  probate  proceedings, 
sec.  67,  p.  460 
necessary,  though  not  required  by  statute  authorizing  proceeding, 
•  sec.  67,  p.  460 

Proceedings  in  rem.    (See  Att.\chment.) 
jurisdiction  in,  how  obtained,  sec.  14.  p.  44 
personal  service  on  defendant  not  necessarv  to  give  jurisdiction,  sec. 

14,  p.  44 
jurisdiction  acquired  by  seizure  of  property,  sec.  14,  p.  44 
in  order  to  be  eftectual,  must  be  followed  by  notice,  sec.  14,  p.  45 
in  some  states  notice  sufficient  without  seizure,  sec.  14,  p.  45 
failure  to  give  notice  does  not  deprive  court  of  jurisdiction  or  render 

judgment  void.  sec.  14,  p.  45 
failure  to  give  notice  can  only  be  taken  advantage  of  on  appeal,  sec. 

14,  p.  45 
but  otherwise  where  property  not  levied  upon,  sec.  14,  p.  45 
levy  of  writ  necessary  in  attachment,  sec.  14,  p.  45 
seizure  of  property  not  necessary  in  actions  to  enforce  specific  liens, 

sec.  14,  p.  46 
in  such  cases  presence  of  property  gives  jurisdiction,  sec.  14,  p.  46 
notice  to  defendant  necessary   in  attachment  proceedings,  sec.  14, 

p.  48 
control  of  property  must  be  maintained  or  jurisdiction  lost,  sec.  14, 

p.  47 
personal  service  on  non-resident  gives  jurisdiction,  sec.  14,  p.  48 
where  action  is  for  debt,  power  of  court  limited  to  application  of 

property  to  its  satisfaction,  sec.  14,  p.  48 
complaint  amended  new  notice  necessary,  sec.  14,  p.  49 
only  rights  of  parties  notified  affected,  sec.  14,  pp.  49,  50 
proceeding  purely  in  rem  general  notice  sufficient,  sec.  14,  p.  50 
constructive  notice  when  allowed,  sec.  14,  p.  50;  sec.  38,  p.  267 
personal  service  out  of  state  is  constructive,  sec.  14,  p.  50 


874 


INDEX. 


Proceedings  in  rem— Continued. 

provisional  remedies  against  property  to 'satisfy  debt  unknown  to 

common  law,  sec.  14,  p.  50 
manner  of  giving  notice  statutory,  sec.  14,  p.  51 
provisions  for  constructive  notice  must  be  strictly  pursued,  sec.  14, 

p.  51 
losing  custody  of  property  deprives  court  of  jurisdiction,  sec.    24, 

p.  154 
failure  to  give  notice  in  deprives  court  of  jurisdiction,  sec.  24,  p.  154 
application  of  guardian  or  administrator  for  sale  whether  is,  sec.  41, 

p.  303 
whether  statutes  requiring  application  for  change  of  venue  if  action 

brought  in  wrong  county  apply  to,  sec.  46,  pp.  429—431 
when  attachment  is,  sec.  74,  p.  519 

Proceeding-  Supplementary  to  Execution- 
has  superseded  equity  jurisdiction  of  courts  of  equity  in  aid  of  en- 
forcement of  common  law  judgments,  sec.  18,  p.  75 

Process.     (See   Jcrisdiction;    Service   of   Process;    Due    Process  of 
Law;    Summons;   Subpena.) 
of  courts  of  one  state  can  not  extend  into  another  state  without 

consent,  sec.  15,  pp.  51,  53 
state  may  prescribe  what  shall  issue  as  between  its  own  citizens,  sec. 

15,  p.  52 
of  court  of  a  county  may  be  made  to  extend  over  state,  sec.  15,  p.  52 
of  one  court  will  not  be  controlled  by  another  of  concurrent  juris- 
diction, sec.  79,  p.  609 
nature  and  deferent  kinds  of,  sec.  35 

original,  diflFerence  between  at  common  law  and  under  codes,  sec. 

35,  p.  234;    sec.  36,  p.  239 
defined,  see.  35,  p.  234 

at  common  law,  action  commenced  by  original  writ,  sec,  35,  p.  234 
original  writ  defined,  sec.  35,  p.  234 

vfas  the  foundation  of  the  suit,  sec.  35,  p.  235 
was  followed  by   summons,   attachment  and  distringas,  to  compel 
obedience,  sec.  35,  p.  235 
in  equity  first  process  a  subpena,  sec.  35,  p.  235 
subpena  defined,  sec.  35,  p.  235 

other  writs  issued  to  compel  appearance,  sec.  35,  p.  235 
objects  of  common  law  and  equity  writs  to  compel  appearance,  sec. 

35,  p.  236 
common  law  writs  proceeded  against  property,  sec.  35,  p.  236 
equity  writs  operated  upon  the  person,  sec.    35,  p.  236 

but  property  sequestered  by  court  of  equity,  when,  sec.  35,  p.  236 
under  civil  and  ecclesiastical  law  personal  citation  issued,  sec.  35, 
p.  236 
called  monition  and  adopted  by  admiralty  courts,  sec.  35,  p.  236 
process  under  present  practice  not  to  compel  attendance  but  to  give 
opportunity  to  attend,  sec.  35,  p.  236 
penaltv  for  failure  to  attend  is  judgment  by  default,  sec.   35,  p. 
236 
common   law  and   equity  writs   to  compel  appearance  obsolete, 

sec.  35,  p.  236 
superseded  by  writ  of  summons,  sec.  35,  p.  236 
summons  defined,  sec.  35,  pp.  236,  237 

in  some  of  the  states  is  a  mere  notice  not  issuing  out  of  court, 
sec.  35,  p.  237 
but  its  object  is  the  same,  sec.  35,  p.  237 


INDEX.  875 

Process — Continued. 

sometimes  denominated  a  citation  or  notice,  sec.  35,  p.  237 

subpena  still  in  use  in  federal  and  some  state  courts,  sec.  35,  p.   237 

but  sometimes  modified  in  form,  sec.  35,  p.  238 
in  many  proceedings,  as  in  matters  of  probate,  notice  provided  for, 

sec.  35,  p.  238 
in  federal  courts  monition  of  the  civil  law  still  in  use,  sec.  35,  p.  238 
may  be  general  to  all  persons,  or  special  to  individuals  named, 
or  mixed  containing  special  directions  to  all  persons  and 
special  summons  to  particular  persons,  sec.  35,  p.  238 
citation  defined,  sec.  35.  p.  238 

does  not  differ  materially  from  summons,  sec.  35,  p.  238 
all  original  process  in  the  several  states  essentially  the  same,  sec. 

35,  p.  238 
changes  made  in  original  process  in  England,  sec.  35,  p.  238 
provision  usually  made  for  publication  when  personal  service  can 
not  be  had,  sec.  35,  p.  239 
of  what  publication  consists,  sec.  35,  p.  239 
notice  required  in  appellate  courts,  sec.  35,  p.  239 
requisites  of  process,  sec.  36 

importance  of  form  under  common  law  practice,  sec.  36,  p.  239 
at  present  day,  is  of  little  consequence,  sec.  36,  p.  239 
objects  of,  sec.  36,  p.  239 
general  requisites  of,  sec.  36,  pp.  239,  240 
must  conform  substantially  to  requirements  of  statute,  sec.  36, 

p.  240 
defective,  when  sufficient  to  give  jurisdiction,  sec.  36,  p.  240 
certainty  required  in,  sec.  36,  p.  241 

name  of  person  to  be  summoned  must  appear  in,  sec   36,  p.  241 
variance  in  name,  when  will  not  vitiate,  sec.  36,  p.  241 
to  whom  must  be  directed,  sec.  36,  p.  241 

authorized   to  issue    to  certain  officer,  if  another  officer  disquali- 
fied, disqualification  must  exist,  sec.  36,  p.  241 
when  form  of,  depends  upon  nature  of  action,  sec.  36,  p.  242 
effect  of  variance  between  summons  and  complaint,  sec.  36,  pp. 
242,  243 
which  controls,  complaint  or  summons,  sec.  36,  p.  242 
when  variance  will  be  presumed  to  have  worked  injurv,  sec.  36, 
p.  242 
when  statute  fixing  form  held  to  be  mandatory,  and  summons  fa- 
tally defective,  sec.  36,  p.  243 
distinction  between  cases  where  clerk  enters  default  and  where  re- 
lief is  asked  of  court,  as  to  effect  of  variance,  sec.  36,  pp.  243, 
244 
literal  compliance  with  statute  not  necessary,  sec.  36,  p.  244 
general  statement  of  cause  of  action  sufficient,  sec.  36,  p.  245 
clerk  of  one  court  can  not  issue  returnable  in  another  court  un- 
less expressly  authorized,  sec.  36,  p.  245 
signature  of  clerk  necessary,  sec.  36,  p.  245 

except  when  authorized  to  be  signed  by  plaintiff  or  his  attorney, 
sec.  36,  p.  245 
printed  signature  sufficient,  sec.  36,  p.  245 
how  must  be  tested,  sec.  36,  p.  245 

teste  matter  of  form  and  may  be  amended,  sec.  36,  p.  246 
must  bear  seal  of  court,  sec.  36,  p.  246 

but  may  be  amended  by  attaching  seal,  sec.  36,  pp.  245,  246 
even  after  judiiment,  sec.  36.  p.  246 
such  summons  defective,  but  not  void,  sec.  36,  p.  246 


876  INDEX. 

Process —  Continued. 

but  as  to  this  the  authorities  are  conflicting,  sec.  36,  pp.  246,  247 
failure  to  comply  with  requirement  that  shall  run  in  name  of 

state,  renders  irregular  but  not  void,  sec.  36,  p.  247 
issuance  of,  is  ministerial  act,  sec.  36,  p.  247 

and  clerk  may  issue  in  action  in  his  own  behalf,  sec.  36,  pp.  247 
248 
but  can  it  be  issued  to  sheriff  or  other  officer  in  his  own  action  ? 

sec.  36,  p.  248 
effect  of  service  by  one  officer  of  writ  directed  to  another,  sec.  36, 

p.  248 
notice  must  be  authorized  by  law  or  is  no  notice,  sec.  36,  p.  248 
summons  issued  on  Sunday,  when  will  be  upheld,  sec.  36,  p.  249 
when  summons  may  issue,  sec.  36,  p.  249 

generally  after  complaint  filed,  sec.  36,  p.  249 
and  if  issued  before,  is  void,  sec.  36,  p.  249 
different  rule  in  some  states,  sec.  36,  p.  249 
alias  summons,  when  may  issue,  sec.  36,  p.  249 
return  day,  what  is,  sec.  36,  p.  249 
time  when  made  returnable  affects  validity,  when,  sec.  36,  pp.  249, 

250 
must  be  returnable  on  day  required  by  statute,  sec.  36,  p.  250 
made  returnable  on  legal  holiday  not  void,  sec.  36,  p.  250 
but  will  be  returnable  first  judicial  day  thereafter,  sec.  36,  p. 
250 
made  returnable  for  v?rong  hour  in  the  day,  effect  of,  sec.  36,  p. 

250 
failure  to  indorse  name  of  attorney  for  plaintiff  on,  effect  of,  sec. 

36,  pp.  250,  251 

when  summons  aided  by  complaint  attached,  sec.  36,  p.  251 
service  of  process,  sec.  37,  p.  251 

governed  by  statute,  sec.  37,  p.  251 

statutes  of  different  states  substantially  the  same  as  to  material 
matters,  sec.  37,  p.  251 
but  differ  as  to  matters  of  form,  sec.  37,  p.  251 
purpose  and  object  of  such  statutes,  sec.  37,  p.  251 
due  service  necessary  to  give  jurisdiction,  sec.  37,  p.  252 
by  whom  may  be  made,  sec.  37,  p.  252 

generally  by  officers  designated  by  statute,  sec.  37,  p.  252 

but  may  be  by  private  individuals  when  authorized  by  law,  sec. 

37,  p.  252 
when  by  special  deputies,  sec.  37,  p.  252 
distinction  between   general  and  special  deputies  as  to  power  to 

serve,  sec.  37,  p.  253 
power  of  special   limited  to  county  covered  by  appointment,  sec. 

37,  p.  253 

so  when  limited  to  service  of  particular  writ,  sec.  37,  p.  253 
but  service  not  void  where  could  serve  as  private  individual,  sec. 
37,  p.  253 

but  proof  of  such  service  must  be  by  affidavit  and  not  by  re- 
turn, sec.  37,  p.  253 
appointment  of  special  bailiff  without  seal,  effect  of,  sec.  37,  p.  254 
failure  to  indorse  appointment  on  writ,  effect  of  sec.  37,  p. -254 
power  of  constable  to  appoint  deputy,  and  powers  of,  sec.  37,  p.  254 
sheriff  can  not  serve  out  of  his  county,  sec.  37,  p.  254 

nor  can  private  individual,  sec.  37,  p.  254 
direction  of  writ  to  wrong  officer,  effect  of,  sec.  37,  pp.  254,  255 


INDEX.  877 

Process —  Continued. 

rule  where  proper  officer  is  claimed  to  be  disqualified,  sec.  37,  p. 
255 
effect  of  service  by  private  individual,  sec.  37,  p.  255 
general  rule  that  officer  can  not  serve  process  in  his  own  case, 
sec.  37,  p.  255 
but  held  in  some  cases  rule  not  applicable  to  summons,  sec.  37, 
p.  255 
and  this  is  the  better  rule,  sec.  37,  p.  255 

only  objection  to  such  service  is  liability  to  false  return,  sec. 
37,  p.  256 
where  statute  provides  for  service  by  disinterested  person  service 

by  interested  party  void,  sec.  37,  p.  256 
conditional  authority   of  court  to  appoint  private  individual   to 
serve,  conditions  must  exist  or  service  void,  sec.  37,  p.  256 
but  will  be  presumed  if  not  required  to  be  affirmatively  stated 

in  writ,  sec.  37,  p.  256 
otherwise  if  required  to  be  stated,  sec.  37,  p.  256 
if  reasons  for  appointment  not  set  out,  when  required,  can  not  be 

amended  after  service,  sec.  37,  p.  256 
must  appear  that  private  individuals  have  statutory  qualifications, 

sec.  37,  p.  256 
indorsement  on  original,  authorizing  party  to  serve,  does  not  au- 
thorize service  of  alias,  sec.  37,  p.  257 
when  may  he  served,  sec.  37,  p.  257 

generally,  not  before  filing  of  complaint,  sec.  37,  p.  257 
nor  after  return  day,  sec.  37,  p.  257 
alias  must  issue  in  such  case,  sec.  37,  p.  257 
held  may  be  dated,  issued,  and  returned  on  return  day,  sec.  37,  p.  257 
service  on  return  day  voidable,  not  void,  sec.  37,  p.  257 
where  may  be  served,  sec.  37,  p.  257 

not  beyond  territorial  jurisdiction  of  court  issuing,  oec.  37,  p.  257 
unless  expressly  authorized,  sec.  37,  pp.  257,  258 
but  service  out  of  jurisdiction  may  be  authorized  by  statute,  sec. 
37,  p.  258 
service  out  of  county  usually  provided  for,  sec.  37,  p.  258 

and  sometime  out  of  state,  sec.  37,  p.  258 
non-resident  temporarily  within  state  may  be  served,  sec.  37,  p.  258 
excei)tions  where  in  attendance  at  court  as  party  or  witness  or 
going  or  coming,  sec.  37,  p.  258 
must  have  reasonable  time  to  return  to  his  state,  sec.  37,  p.  258 
some  cases  hold  exemption  only  applies  attendance  under  writ  in- 
volving arrest,  sec.  37,  p.  2.59 
but  weight  of  authority  the  other  way,  sec.  37,  p.  259 
extends  to  persons  attending  before  officer  to  give  deposition,  sec. 
37,  p.  259 
but  not  where  deposition  to  be  used  in  another  state,  sec.  37,  p. 
259 
immunity  does  not  depend  upon  statute,  sec.  37,  p.  259 

nor  upon  citizenship,  sec.  37,  p.  259 
applies  to  resident  of  state  attending  out  of  his  county,  sec.  37,  pp. 

259,  260 
but  sometimes  held  service  on  resident  out  of  county  not  void,  but 

entitles  to  change  of  venue,  .sec.  37,  p.  259 
distinction  between  resident  and  non-resident  in  case  of  arrest, 

sec.  37,  p.  259 
exception  extends  to  one  induced  to  come  within  jurisdiction  by 
fraud,  sec.  37,  pp.  260,  261 


878  INDEX. 

Process — Continued. 

rule  applies  to  officers  of  corporation,  sec.  37,  p.  261 
member  of  congress  privileged  while  in  attendance  at  session  and 
going  and  returning,  sec.  37,  p.  261 
deviation  from  direct  route,  effect  of,  sec.  37,  p.  261 
rule  applies  to  members  of  legislature,  sec.  37,  p.  261 
in  some  cases  confined  to  process  involving  arrest,  sec.  37,  p.  261 
but  better  rule  extends  it  to  civil  process  not  involving  arrest, 
sec.  37,  p.  261 
question  of  privilege,  how  raised,  sec.  37,  p.  261 
what  necessary  to  authorize  service  on  joint  defendant  residing 
out  of  county,  sec.  37,  p.  261 
resident  defendant  must  have  real  interest  adverse  to  plaintiff, 
sec.  37,  pp.  261,  262 
defective  service,  how  question  of  raised,  sec.  37,  p.  262 
distinction  between  void  and  defective,  as  to  time  and  manner  of 
raising  objection,  sec.  37,  p.  262 
how  Tnay  be  served,  sec.  37,  p.  262 

personal  service  generally  required,  sec.  37,  p.  262 
what  will  constitute  personal  service,  sec.  37,  p.  262 
leaving  copy  at  place  of  residence,  what  necessary,  sec.  37,  pp.  262, 
263 
strict  compliance  with  statute  required,  sec.  37,  p.  262 
summons  for  wife,  leaving  copy  with  husband,  effect  of,  sec.  37,  p. 

262 
generally  copy  of  complaint  must  beserved  with,  sec.  37,  p.  263 
when  required  service  of  such  copy  necessary  to  give  jurisdiction, 

sec.  37,  p.  263 
where  certified  copy  required,  copy  not  certified  insuflBcient,  sec. 
37,  p.  263 
service  on  partners,  what  suflficient,  sec.  37,  p.  263 
variance  between  copy  served  and  original,  effect  of,  sec.  37,  p.  264 
service  on  minors,  what  necessary,  sec.  37,  p.  264 
on  insane  persons,  sec.  37,  p.  265 
on  married  women,  sec.  37,  p.  265 
on  persons  acting  in  official  capacity,  sec.  37,  p.  266 
constructive  service  of  •process,  sec.  38 
meaning  of,  sec.  38,  p.  266 

includes  personal  service  out  of  state,  sec.  38,  p.  266 
is  exceptional  mode  of  service,  sec.  38,  p.  266 
statutes  authorizing  must  be  complied  with,  sec.  38,  p.  266 
division  of  the  subject,  sec.  38,  p.  266 
a.  in  what  cases  allowed,  sec.  38,  p.  267 

under  control  of  the  states,  sec.  38,  p.  267 

general  rule  personal  action  can  not  be  maintained  on,  sec.  38, 
p.  267 
either  against  resident  or  non-resident,  sec.  38,  p.  267 
personal  judgment,  what  is,  sec.  38,  p.  268 
allowed  in  actions  m  rem,  and  attachment,  sec.  38,  p.  269 

but  relief  confined  to  property,  sec.  38,  p.  269 
seizure  of  property  generally  necessary,  sec.  38,  p.  270 

and  notice,  sec.  38,  p.  270 
allowed  in  cases  to  enforce  specific  liens  on  property  within  ju- 
risdiction, sec.  38,  p.  270 
as  in  case  of  mortgage  on  real  or  personal  property,  sec.  38,  p. 

270 
proceedings  affecting  title  to  real  estate,  sec.  38,  p.  270 
to  set  aside  fraudulent  conveyances,  sec.  38,  p.  270 


iXDEX.  879 

Process —  Continued. 

actions  to  quiet  title,  sec.  38,  p.  270 
to  abate  nuisances,  sec.  38,  p.  270 
to  establish  trusts  in  real  estate,  sec.  38,  p.  270 
in  such  cases  jurisdiction  depends  upon  presence  of  property, 
sec.  38,  p.  270 
and  personal  judgment  can  not  be  rendered,  sec.  38,  p.  270 
allowed  in  cases  aflFecting  status  of  parties,  as  in  divorce,  sec.  38, 
p.  270 
but  can  be  no  personal  judgment  on,  as  for  alimony,  sec.  38, 
p.  270 
independent  of  statute,  courts  can  not  authorize,  sec.  38,  p.  271 
courts  of  equity,  when  may  authorize  service  on  other  person  for 
non-resident,  sec.  38,  p.  271 
b.  the  affidavit,  sec.  38,  p.  271 

making  of,  is  jurisdictional,  sec.  38,  p.  271 

what  must  be  shown  by,  sec.  38,  pp.  271,  272 

may  be  sufficient  to  give  jurisdiction,  but  defective  and  subject 

to  direct  attack,  sec.  38,  p.  272 
what  must  contain  governed  by  statute,  sec.  38,  pp.  272,  273 
but  every  step  required  may  be  taken  and  yet  service  be  void, 

when,  sec.  38,  pp.  272,  273 
how  fact  of  non-residence  may  be  established,  sec  38,  p.  273 
facts  required  to  be  stated  in,  can  not  be  supplied  by  other  evi- 
dence, sec.  38,  p.  273 
held  not  to  be  part  of  judgment  roll,  sec.  38,  pp.  273,  274 
and  that  was  made  will  be  presumed,  sec.  38,  p.  274  ^ 

must  appear  from,  that  case  is  one  for  constructive  notice,  when, 

sec.  38,  p.  274 
when  complaint  may  be  looked  to  for  cause  of  action,  sec.  38 

pp.  274,  275 
general  statement  of  cause  of  action  sufficient,  sec.  38,  p.  275 
not  always  sufficient  to  follow  language  of  statute,  sec.  38,  p.  275 
diligence  to  find  defendant  for  personal  service,  what  showing 
of  necessary,  sec.  38,  pp.  275,  276,  277 
facts  as  to  what  was  done  must  be  stated,  sec.  38,  p.  275 
but  any  facts  tending  to  show  gives  court  jurisdiction  to  de- 
termine question,  sec.  38,  p.  275 
what  constitutes  due  diligence  can  not  be  definitely  stated,  sec. 

38,  pp.  275,  276 
allegation  of  property  within  jurisdiction,  how  must  be  made, 

sec.  38,  p.  276 
what  may  be  stated  on  information  and  belief,  sec.  38,  p.  276 
that  defendant  is  out  of  state  must  be  positive  and  direct,  sec. 
38,  p.  276 
absence  from  state,  what  sufficient,  sec.  38,  pp.  276,  277 
strictness  required  in  stating  nature  of  action,  sec.  38,  p.  277 
name  of  party  to  be  published  against  necessary,  sec.  38,  p.  277 
except  where  defendant  may  be  sued  under  fictitious  name, 

sec.  38.  p.  277 
then  must  be  shown  that  true  name  is  unknown,  sec.  38,  p.  277 
false  statement  of  cause  of  action  in,  effect  of,  sec.  38,  p.  277 

does  not  affect  jurisdiction  of  court,  sec.  38,  p.  278 
of  non-residence  must  relate  to  time  of  order  for  publication,  sec. 
38,  p.  27S 
how  near  the  time  must  be  made,  sec.  38,  p.  278 
need  not  be  made  at  time  complaint  is  filed,  sec.  38,  p.  278 


880  INDEX. 

Process — Continued. 

in  some  states  complaint  must  be  filed  after  proof  of  publication, 

sec.  38,  p.  278 
and  if  filed  before  judgment,  void,  sec.  38,  p.  278 
when  affidavit  may  be  amended,  sec.  38,  p.  279 
difficulty  of  making  personal  service  no  ground  for  publication, 

sec.  38,  p.  279 
insufficiency  of  complaint  not  ground  for  attacking  notice  sec.  38, 
p.  279 
C.  officers  return  as  basis  for  jurisdiction,  sec.  38,  p.  279 

facts  necessarjr  for,  when  may  be  shown  by,  sec.  38,  p.  279 
what  must  be  shown  by,  sec.  38,  p.  279 

d.  order  of  publication,  sec.  38,  p.  280 

must  require  all  acts  to  be  done  that  statute  requires,  sec.  38,  p.  280 
is  the  authority  for  making  the  service,  sec.  38,  p.  280 

and  proper  service  without  necessary  order  therefor  is  void,  sec. 
38,  p.  280 
what  order  must  contain,  sec.  38,  pp.  280,  281 

e.  the  publication,  sec.  38,  p.  281 

what  must  be,  governed  by  statute,  sec.  38,  p.  281 
in  some  states  summons  published,  sec.  38,  p.  281 
in  others  notice  containing  its  substance,  sec.  38,  p.  281 
irregularities  do  not  render  void,  sec.  38,  p.  281 

but  distinction  in  this  respect  between  personal  and  constructive 
service,  sec.  38,  pp.  281,  282 
publication  for  less  than  required  time,  effect  of,  sec.  38,  pp.  282,  283 
-       rule  iu  cases  of  petition  by  guardian  for  sale  of  ward's  property, 
*  sec.  38,  p.  283 

petition  said  to  give  jurisdiction  in  such  cases,  sec.  38,  p.  283 
relief  demanded  of  which  notice  is  given  limits  jurisdiction  to 

granting  such  relief,  when,  sec.  38,  p.  284 
death  of  defendant  pending  publication,  new  notice  necessary,  sec. 

38,  p.  284 
where  publication  measured  by  month,  calendar  months  meant, 

sec.  38,  p.  284 
what  is  sufficient  length  of  time  for  publication,  sec.  38,  p.  284 

f.  proof  of  publication,  sec.  38,  p.  284 

validity  of  judgment  does  not  depend  upon,  sec.  38,  p.  284 

but  upon  fact  of  publication,  sec.  38,  p.  284 

therefore  may  be  supplied  after  judgment,  sec.  38,  p.  285 

and  may  be  amended,  sec   38,  p.  285 
failure  to  make  is  irregularity  merely,  sec.  38,  p.  285 
but  judgment  void  on  face,  right  to  supply  or  amend  subject  to 

intervening  rights,  sec.  38,  p.  285 
facts  of  publication  may  be  established,  how,  sec.  38,  p.  285 
by  whom  affidavit  may  be  made,  sec.  38,  p.  285 
warning  order  takes   place  of  summons,  and  proof  the  jilace  of 

officer's  return,  sec.  38,  p.  286 
facts,  appearing  in,  by  way  of  recital,  effect  of,  sec.  38,  p.  286 
after  many  years  slight  proof  sufficient,  sec.  38,  p.  286 

g.  personal  service  out  of  state,  sec.  38,  p.  286 
is  constructive  service,  sec.  38,  p.  286 

and  allowed  on  like  showing  as  for  publication,  sec.  38,  p.  286 
and  usually  length  of  service  the  same,  sec.  38,  p.  286 
proof  of  personal  service  of  process,  sec.  39 

service,  not  proof  of,  gives  jurisdiction,  sec.  39,  p.  287 
service  by  officer,  proof  of  by  his  return,, sec.  39,  p.  287 
by  private  individual,  by  his  affidavit,  sec.  39,  p.  287 


I 


INDEX.  881 

Process — Continued. 

but  such  modes  not  exclusive,  but  proof  of  may  be  made  other- 
wise, sec.  39,  p.  287 
but  sometimes  held  can  not  be  by  parol,  sec.  39,  p.  287 
and  this  so  where  question  arises  on  appeal,  sec.  39,  pp.  287,  288 
facts  necessary  to  show  valid  service  must  be  shown,  sec.  39,  p.  288 
competency  of  private  individual  to  serve  must  be  shown,  when, 
sec.  39,  p.  288 
but  failure  to  show  mere  irregularity,  sec.  39,  p.  288 
in  other  respects  return  and  affidavit  the  same,  sec.  39,  p.  288 
what  sufficient  to  be  shown,  sec.  39,  pp.  288,  289 
service  of  copy  of  complaint  must  appear,  when,  sec.  39,  p.  289 

and  certified  copy,  sec.  39,  p.  289 
how  writ  must  be  delivered,  sec.  39,  p.  289 
service  by  mail,  what  sufficient  proof  of,  sec.  39,  p.  289 
strictness  required  where  service  by  leaving  copy,  sec.  39,  p.  290 
must  show  place  of  service,  sec.  39,  p.  290 

but  when  will  be  presumed  to  have  been  within  jurisdiction,  sec. 
39,  p.  290 
failure  to  give  name  of  party  served,  service  a  nullity,  sec.  39,  p. 

290 
variance  in  name  in  summons  and  return,  effect  of,  sec.  39,  p.  290 
action  against  husband  and  wife,  eflFect  of  proof  of  service  on  hus- 
band, sec.  39,  p.  290 
proof  necessary  where  service  allowed  on  one  person  if  another 

not  found,  sec.  39,  p.  291 
service  how  shown  by  acceptance  of,  sec.  39,  p.  291 
by  third  party,  authority  must  appear,  sec.  39,  p.  291 
can  not  be  made  by  a  minor,  or  by  guardian  for  him,  sec.  39,  p. 

291 
genuineness  of  signature  to  acceptance  must  be  shown,  when, 
sec.  39,  p.  291 
service  out  of  state,  what  necessary,  sec.  39,  p.  292 
what  necessary  as  to  time  of  service,  sec.  39,  p.  292 
return  may  be  amended  even  after  judgment,  sec.  39,  p.  292 
but  subject  to  intervening  rights,  when,  sec.  39,  p.  292 
must  be  upon  notice,  when,  sec.  39,  p.  292 
found  defective  on  appeal,  effect  of,  sec.  39,  p.  293 
when  verification  of  return  necessary,  sec.  39,  p.  293 
by  deputy,  must  be  in  name  of  principal,  sec.  39,  p.  293 
by  special  deputy,  how  proof  made,  sec.  39,  p.  293 
need  not  appear  that  service  was  by  deputy,  when,  sec.  39,  p.  293 
effect  of  return  in  name  of  special  deputy,  sec.  39,  p.  294 
time  when  return  should  be  made,  sec.  39,  p.  294 
effect  of  return,  whether  conclusive  or  not,  sec.  39,  p.  294 
proof  by  private  individual  may  be  contradicted,  sec.  39,  p.  295 
defects  in  return  not  ground  for  quashing  writ,  sec.  39,  p.  295 
due  service  when  presumed,  sec.  39,  p.  295 
but  proof  showing  insufficient  service  not  aided  by  presumption, 

when,  sec.  39,  p.  295 
degree  of  exactness  required  in  proof  sec.  39,  p.  295 
distinction  between  personal  and  constructive  service,  sec.  39,  pp. 

295,296 
question  on  appeal  not  necessarily  one  of  jurisdiction,  sec.  39,  p. 

296 
jurisdiction  should  not  be  allowed  to  fail  for  want  of  formal  proof, 
sec.  39,  pp.  296,  297 

56 


882  INDEX. 

Process —  Continued. 

defective  process  and  service,  see.  40 

distinction  between  defective  and  void  service,  sec.  40,  pp.  297,  299 

former  confers  jurisdiction,  latter  not,  sec.  40,  p.  297 
latter  ground  for  collateral  attack,  former  not,  sec.  40,  p.  297 
proof  may  be  amended,  sec.  40,  p.  298 
when  can  not  be  amended  after  appeal,  sec.  40,  p.  298 
distinction  between  actual  and  constructive  service  as  to  effect  of, 
sec.  40,  pp.  298,  299 
waiver  of  process  and  service  and  defects  therein,  sec.  41 
eflfect  of  general  appearance,  sec.  41,  p.  300 

is  equivalent  to  service,  sec.  41,  p.  300 
persons  under  disabilities  can  not  waive,  sec.  41,  p.  300 
nor  can  their  guardians,  sec.  41,  p.  300 
exceptions  in  case  of  guardians,  sec.  41,  p.  300 
service  on  minor  necessary  to  authorize  appointment  of  guardian 
ad  litem,  sec.  41,  p.  301 
and  person  appointed  can  do  no  act  conferring  jurisdiction,  sec. 

41,  p.  301 

effect  of  such  appointment  and  appearance,  sec.  41,  pp.  301,  302 
distinction  between  and  failure  to  appoint  where  there  is  serv- 
ice, sec.  41,  p.  302 
recitals  in  record  binding  on  minors,  sec.  41,  p.  302 
when  service  on  minor  not  necessary  to  give  jurisdiction,  sec.  41, 
p.  302 
in  case  of  petitions  in  proceedings  not  adversary,  sec.  41,  p.  302 
attorney  can  not  waive  service  on  minor,  sec.  41,  p.  303 
receipt  of  benefits  of  judgment,  effect  of  as  to  waiver,  sec.  41,  p. 

303 
agreement  to  waive  return  of  service,  effect  of,  sec.  41,  p.  303 
summons  by  wrong  name,  effect  of  appearance,  sec.  41,  p.  303 
setting  up  objections,  effect  of  as  waiver  of  other  objections,  sec. 

41,  p.  303 

failure  to  appear  and  object,  effect  of,  sec.  41,  p.  303 
time  within  which  objection  to  defects  may  be  taken,  sec.  41,  p.  304 
relief  on  account  of  fraud,  sec.  41,  p.  304 
acceptance  of  service,  effect  of  as  a  waiver,  sec.  41,  p.  304 
authority  of  agent  to  waive,  sec.  41,  p.  304 

waiver  without  appearance,  how  may  be  done,  sec.  41,  pp.  304,  305 
bringing  action  in  wrong  county,  how  waived,  sec.  41,  p.  305 
appearance  and  contest  of  service  does  not  waive  right  to  writ  of 
error,  sec.  41,  p.  305 
of  new  parties  and  amended  pleadings,  sec.  42 

when  new  parties  made,  how  jurisdiction  obtained,  sec.  42,  p.  305 
no  new  service  necessary  when  new  parties  plaintiff  made,  sec. 

42,  p.  305 

auxiliary  proceedings  in  equity,  service  may  be  made  on  attorney, 

when,  sec.  42,  p.  305 
an  amendment  of   complaint  where  no  appearance,   when    new 

service  necessary,  sec.  42,  p.  306 
new  parties,  when  new  service  on  original  parties  necessary,  sec. 

42,  p.  306 

presumptions  in  such  cases,  sec.  42,  p.  306 

substituted  plaintiff,  no  new  process  necessary,  sec.  42,  pp.  306, 

307 
or  where  name  of  plaintiff  stricken  out,  sec.  42,  p.  307 
in  case  Of  death   of  defendant  and   substitution  of  representative 

or  heir,  what  notice  necessary,  sec.  42,  pp.  307,  308 


i^'DEX.  883 

Process —  Cont'tnued. 

when  cause  pending  on  writ  of  error,  sec.  42.  p.  307 
decision  after  death,  relates  back,  see.  42,  p.  307 

on  reversal,  what  necessary  in  court  below  in  case  of  death,  sec. 
42,  p.  307 
in  actions  ayainst  corporations,  sec.  43 

manner  of  making  service  on,  difference  between  and  on  natural 
persons,  sec.  43,  p.  308 

statutes  compelling  submission  of,  to  service  out  of  state,  as  con- 
dition of  doing  business,  sec.  43,  p.  308 

constitutionality  of  such  statutes  upheld,  sec.  43,  p.  308 

conditions  must  be  reasonable,  sec.  43,  pp.  308,  309 

right  to  serve  in  state  other  than  that  of  its  creation  wholly  statu- 
tory, sec.  43,  p.  309 

right  to  sue  in  foreign  state  not  confined  to  action  growing  out  of 
business  done  therein,  sec.  43,  p.  309 

distinction  as  to  corporations  acting  under  interstate  commerce 
law,  sec.  43,  p.  310 

corporation  not  a  citizen  within  meaning  of  constitution,  sec.  43, 
p.  310  , 

and  state  may  impose  conditions  upon  which  it  may  do  business 
therein,  sec.  43,  p.  311 

right  to  trial  within  county  or  state  of  residence  a  personal  privi- 
lege and  may  be  waived,  sec.  43,  p.  311 

corporation   doing  business    in    state   where  conditions   imposed 
waives  right  to  be  sued  elsewhere,  sec.  43,  p.  311 

but  can  not,  independently  of  such  statute,  be  sued  out  of  its 
state,  sec.  43,  pp.  311,  312 

upon  whom  service  on  may  be  made,  sec.  43,  pp.  313-316 

as  to  manrker  of  service,  statute  must  be  strictly  pursued,  sec.  43, 
p.  316 

"station  agent,"  meaning  of,  sec.  43,  p.  316 

return  of  officer  as  to  kind  of  officer  served,  effect  of,  sec.  43,  p. 
316 

service  on  two  officers  required,  service  on  one  insufficient,  sec.  43, 
pp.  316,  317 

"general  agent"  and  "managing  agent,"  meaning  of,  sec.  43,  pp. 
317,  318 

may  be  sued  in  any  county,  sec.  43,  p.  318 

agent  or  officer  can  not  be  served  outside  of  territory  he  repre- 
sents, sec.  43,  pp.  318,  319 
or  outside  of  county  in  which  public  corporation  is  situated,  sec. 
43,  p.  319 
'    service  on  officer  in  foreign  state,  must  be  at  the  time  acting  for 
the  corporation  in  such  state,  sec.  43,  p.  319 

service  may  be  on  mere  clerk  if  statute  authorizes,  sec.  43,  p.  319 

what  will  amount  to  such  doing  business  as  to  authorize  service  in 
foreign  state,  sec.  43,  pp.  319,  320 

presence  of  officers  alone  will  not  authorize,  when,  sec.  43,  p.  320 

service  by  publication  may  be  had,  when,  sec.  43,  p.  321 

when  may  be  sued  in  state  of  residence  of  either  plaintiff  or  de- 
fendant, sec.  43,  p.  322 

sometimes   right   to  serve  depends  upon    presence   of    property 
within  jurisdiction,  sec.  43,  j).  322 

in  federal  court,  law  of  state  in  which  court  held  controls,  when, 
sec.  43,  pp.  322,  323 
different  rule  as  to  service  where  corporation  created  by  act  of 
congress,  sec.  43,  p.  323 


884  INDEX. 

Process —  Continued. 

may  be  sued  in  any  state  where  is  doing  business,  sec.  43,  p.  323 
doing  business  in  another  state  does  not  change  place  of  citizen- 
ship, sec.  43,  pp.  323,  324 
where  cross-complaint  is  filed,  sec.  44 

new  parties  brougnt  in  by,  must  be  served,  sec.  44,  p.  324 
but  if  against  parties  before  the  court,  not  necessary,  sec.  44,  p.  324 
when  party  must  take  notice  of  all  pleadings  filed,  sec.  44,  p.  324 
when  service   is   not  necessary  in  case  of  default  under  original 
complaint,  sec.  44,  p.  324 
when  servir'e  of  pleading,  without  summons,  sufficient,  .sec.  44, 
p.  324 
stranger  coming  in  and  setting  up  cause  of  action,  summons  must 

issue,  sec.  44,  p.  325 
in  equity,  service  may  be  made  on  attorney,  sec.  44,  p.  325 

Prohibition- 
question  of  jurisdiction  may  be  raised  by,  sec.  22,  p.  112 
formerly  a  common  law  writ,  sec.  81,  p.  627 
now  almost  wholly  statutory,  sec.  81,  p.  627 

object  of  to  restrain  judicial  tribunals  from  acting  without  or  in  ex- 
cess of  their  jurisdiction,  sec.  81,  pp.  628,  629 
extent  of  jurisdiction  under  statutes,  sec.  81,  p.  628 
general  nature  of  writ  same  as  at  common  law,  sec.  81,  p.  628 
jurisdiction  to  issue  given  by  constitution  means  common  law  writ, 

sec.  81,  p.  629 
statute  extending  to  ministerial  acts  upheld,  sec.  81,  p.  529 
is  preventive  writ  and  can  not  issue  after  act  done,  sec.  81,  p.  629 
can  not  issue  to  prevent  commencement  of  action,  sec.  81,  p.  629 
further  action  may  be  restrained  at  any  stage,  sec.  81,  p.  629 
may  issue  after  judgment  to  prevent  enforcement,  sec.  81,  p.  629 
acts  partially  comj^leted  will  annul  what  has  been  done  and  prevent 

completion,  sec.  81,  pp.  629,  630 
lies  where  lower  court  has  been  deprived  of  jurisdiction,  sec.  81,  p. 

630 
power  to  issue  belongs  to  superior  courts  only,  sec.  81,  p.  630 
when  may  issue  by  supreme  court  of  United  States,  sec.  81,  p.  630 
and  by  other  federal  courts,  sec.  81,  p.  631 
in  what  sense  is  extraordinary  writ,  sec.  81,  p.  6.'^1 
kind  of  remedy  by  ordinary  proceeding  that  will  prevent  its  issu- 
ance, sec.  81,  pp.  631,  632,  636 
usually  denommated  a  prerogative  writ,  sec.  81,  p,  631 
but  treated  generally  as  writ  of  right,  sec.  81,  js.  631 
but  sometimes  held  to  issue  only  at  discretion,  sec.  81,  p.  631 
is  jurisdictional  writ,  sec.  81,  pp.  631,  632 
will  not  issue  to  correct  errors,  sec.  81,  pp.  631,  632 
right  to  certiorari  or  appeal,  when  will  defeat  writ,  sec.  81,  pp.  632,  633, 

636 
delay  in  enforcement  of  other  remedies,  effect  of,  sec.  81,  pp.  632, 

633 
question  of  jurisdiction  must  be  presented  to  lower  court  first,  sec. 

81,  p.  6.33 
but  failure  to  raise  question  below  not  absolute  bar,  sec.  81,  i^p.  633, 

634 
will  lie  for  want  of  jurisdiction  of  the  person,  sec.  81,  p.  634 
distinction  between  want  or  excess  of  jurisdiction,  and  error,  sec. 

81,  pp.  634,  635 
not  confined  to  inquiry  as  to  jurisdiction  of  general  subject-matter, 
sec   81,  pp.  635,  636 


INDEX.  885 

Prohibition — Coniinvcd. 

v\here  question  upon  sufficiency  of  service,  effect  of  finding  of  lower 

court,  sec.  81,  p.  636 
different  rule  where  no  service,  or  service  could  not  give  jurisdiction 

if  made,  sec.  81,  p.  636 
when  right  to  change  of  venue  speedy  and  adequate  remedy,  sec.  81, 

pp.  636,  637 
service  jjrocured  by  fraud  or  when  privileged  writ  will  issue,  sec.  81, 

pp.  636,  637 
appellate  courts,  power  of,  to  issue,  sec.  81,  p.  637 
whether  appeal  will  lie  from  order  refusing,  sec.  81,  pp.  637,  638 
power  of  judges  at  chambers,  sec.  81,  p.  638 
proper  remedy  to  prevent  action  by  disqualified  judge,  sec.  81,  p.  638 

Proof— 

of  jurisdiction,  how  made,  sec.  23,  p,  122-145 

of  publication,  what  must  be,  sec.  38,  pp.  284-286 

of  personal  service,  how  made,  sec.  38,  p.  287 

defective  service  of  process,  effect  of,  sec.  40,  pp.  297-299 

of  service  of  process  in  attachment,  sec.  74,  p.  541 

Property— 

value  of,  what  is  meant  by  as  affecting  jurisdiction,  sec.  16,  p.  63 

in  action  to  quiet  title  value  of  determines  jurisdiction  as  to  amount, 

sec.  16,  p.  62 
and  in  actions  to  set  aside  fraudulent  conveyances,  sec.  16,  p.  62 
taking  of  by  eminent  domain,  notice  necessary,  sec.  33,  p.  213 
within  jurisdiction  of  court  when  constructive  notice  allowed,  sec. 

33,  p.  219;  sec.  38,  pp.  267,268 
when  notice  not  necessary  before  action  taken  against,  sec.  33,  p.  220 
but  jurisdiction  only  extends  to  the  property,  sec.  38,  p.  268 
of  one  defendant  in  state  gives  no  jurisdiction  as  against  another 

defendant,  sec.  38,  p.  269 
seizure  of  gives  jurisdiction  of,  sec.  38,  p.  270 
must  be  within  jurisdiction  in  garnishments,  sec.  75,  p.  552 
Publication.     (See  Constructive  Service  of  Process.) 

of  constructive  notice,  when  authorized,  sec.  38,  pp.  267-271 

affidavit  for,  what  must  show,  sec.  38,  pp.  271-279 

officers  return  as  basis  for,  what  mus  show,  sec.  38,  pp.  279,  280 

order  for  what  sufficient,  sec.  38,  pp.  280,  281 

what  sufficient  publication,  sec.  38,  pp.  281-284 

proof  of,  sec.  38,  pp.  284-286 

Quo  Warranto — 

common  law  prerogative  writ  in  nature  of  writ  of  right,  sec.  83,  p.  659 
formerly  issued  out  of  chancery,  sec.  83,  p.  659 
object  of  the  writ,  sec.  83,  pp.  659,  660,  664,  665 
superseded  by  information  in  nature  of  quo  warranto,  sec.  83,  p.  660 
modern  proceeding  by  information  defined,  sec.  83,  p.  660 
proceedings  by  statute  for  contesting  elections,  sec.  83,  p.  660 
proceeding,  whatever  its  form,  has  become  statutory,  sec.  83,  p.  661 
courts  may  still  issue  writ  as  originally  existed,  sec.  83,  p.  661 
statute  providing  other  remedy  does  not  take  away  jurisdiction  in, 

sec.  83,  p.  661 
held  otherwise  in  some  of  the  states,  sec.  83,  p.  661 
courts  of  equity,  jurisdiction  of,  sec.  83,  p.  662 
grant  of  power  to  issue  writ  includes  information  in  nature  of,  sec. 

83,  p.  662 
includes  power  to  inquire  into  existence  of  private  corporations  or 

right  to  exist,  when,  sec.  83,  p.  662 


886  INDEX. 

Q,UO  Warranto — Continued. 

power  extends  to  municipal  corporations  and  officers,  sec.  83,  p.  662 

extent  of  the  power  in  such  cases,  sec.  83,  pp.  662,  663 
when  proceeding  must  be  against  corporation  and  when  against  in- 
dividuals claiming  to  be,  sec.  83,  p.  663 
against  corporation  admits  its  existence,  sec.  83,  p.  663 
some  cases  the  other  way,  sec.  83,  p.  66  5 

distinction  between  municipal  and  private  corporations  in  this  re- 
spect, sec.  83,  p.  664 
formerly  regarded  as  criminal  preceeding,  sec.  83,  p.  664 
and  brought  in  name  of  prosecuting  officer,  sec.  83,  p.  664 
but  under  most  statutes  treated  as  civil,  sec.  83,  p.  664 
but  criminal  in  its  objects  and  nature,  sec.  83,  p.  664 
object  of  the  proceeding,  sec.  83,  pp.  664,  665 
penalty  imposed,  what  is,  sec.  83,  p.  665 
writ  not  allowed  as  of  course,  but  issues  on  order  of  court,  sec.  83,  p. 

665 
distinction  as  to  this  between  proceedings  on  behalf  of  state  and  on 

behalf  of  private  individual,  sec.  83,  pp.  665,  666 
in  whose  name  may  be  prosecuted,  sec.  83,  pp.  666,  667 
what  may  be  shown  to  authorize  proceeding  by  private  individual, 

sec.  83,  p.  667 
power  of  court  sometimes  limited  by  amount  in  controversy,  sec.  83, 

p.  667 
constitutionality  of  statute,  when  may  be  tested  by,  sec.  83,  p.  667 
jurisdiction  to  inquire  into  right  to  hold  office  extends  to  all  classes 

of  officers,  sec.  83,  p.  668 
how  far  may  inquire  into  right  to  membership  in  legislative  body, 

sec.  83,  p.  668 
how  far  effected  by  vesting  such  power  in  the  body  itself,  sec.  83,  p. 

668 
jurisdiction  does  not  depend  upon,  whether  office  claimed  by  ap- 
pointment or  popular  vote,  sec.  83,  pp.  668,  669 
remedy  extraordinary,  sec.  83,  p.  669 
can  not  be  resorted  to  if  adequate  remedy  by  ordinary  proceeding, 

sec.  83,  p.  669 
only  applicable  where  public  has  an  interest,  sec.  83,  p.  669 
can  not  be  used  to  test  right  to  purely  private  office  or  employment, 

sec.  83,  p.  669 
what  may  be  determined  under  in  case  of  contest  for  office,  sec.  83, 

pp.  669,  670 
foreign  corporation  may  be  prevented  from  doing  business  in  state, 

when,  sec.  83,  p.  670 

R 
Railroads- 
legislature  may  make  failure  to  fence  road  of  conclusive  evidence  of 
negligence,  sec.  33,  p.  229 
Real  Estate.     (See  Sales  of  Real  Estate.) 

in  actions  affecting  title  to,  constructive  service  allowed,  sec.  38,  p. 
270 
Receiver.    (See  Corporations;  JuRLsnicTioN;  Territorial  Jurisdiction.) 
territorial  extent  of  authority  of,  sec.  15,  p.  57 
can  sue  where,  sec.  15,  p.  57 
authority  of  court  to  appoint,  sec.  15,  p.  58 

propertv  once  in  possession  of,  may  follow  into  another  state,  sec.  15, 
p.  58 


INDEX.  887' 

Receiver —  Continued. 

of  national  bank  may  sue  in  United  States  court  without  regard  to 
amount  in  controversy,   sec.  16,  p.  63 

same  true  of  agent  of  national  bank  to  take  place  of,  sec.  16,  p.  63 

appointment  of,  can  not  give  extra  territorial  jurisdiction  over  prop- 
erty, sec.  15,  p.  57 

authority  co-extensive  only  with  jurisdiction  of  court  appointing, 
sec.  15,  p.  57 

state  comity  does  not  require  other  state  to  permit  receiver  to  pur- 
sue legal  remedies  therein  to  detriment  of  its  citizens,  sec.  15, 
p.  57  _ 

of  one  state,  no  authority  to  give  in  another,  sec.  15,  p.  57 

but  allowed  to  do  so  as  matter  of  comity,  when,  sec.  15,  p.  58 

cases  holding,  may  be  appointed  over  property  in  another  state,  sec. 
15,  p.  58 

state  legislation  may  bring  all  property  of  insolvent  corporation 
within  jurisdiction  of  state  where  does  business,  sec.  15,  p.  58 

and  vest  receivers  with  authority  over  property  of,  in  another  state, 
sec.  15,  p.  58 

property  coming  into  possession  of,  within  jurisdiction  may  follow 
into  another  state,  sec.  15,  p.  58 

on  ground  that,  has  special  property  in,  sec.  15,  p.  58 

Recitals— 

in  records,  eflPect  of,  as  evidence  of  jurisdiction,  sec.  23,  pp.  127-145; 

sec.  25,  pp.  163-168;  sec.  26,  pp.  168,  169;  sec.  38,  p.  286 
in  record  of  probate  court,  effect  of,  sec.  67,  p.  434 
in  case  of  sales  of  real  estate,  sec.  76,  pp.  559,  567 

Record.     (See  Courts  of  Record;   Inferior  Courts;  Judgments.) 
must  show  jurisdiction  of  inferior  courts,  sec.  20,  p.  88 
technical  precision  in,  of  inferior  courts  not  required,  sec.  20,  pp. 

88,  89 
recitals  in  as  to  jurisdiction  of  inferior  courts,  effect  of,  sec.  20,  p.  96 
appeals  usually  tried  by,  sec.  21,  p.  99 
jurisdiction  of  appellate  court  must  appear  from,  on  appeal,  sec.  21, 

p.  99  / 

where  want  of  jurisdiction  appears  from,  appeal  dismissed,  sec.  21,  p. 

100 
when  question  of  jurisdiction  on  appeal  depends  on  record  made  by 

trial  court,  conclusive,  sec.  21,  p.  100 
on  appeal,  court  has  jurisdiction  only  of  questions  presented  by,  sec. 

21,  p    100 
want  of  jurisdiction  of  subject-matter  appearing  from,  consent  can 

not  give.  sec.  21,  p.  100 
real  controversy  must  appear  from  to  give  appellate  court  jurisdic- 
tion, sec.  21,  p.  101 
jurisdiction  of  inferior  courts  must  be  proved  by,  sec.  23,  pp.  125,  126 
recital  in,  controlled  by  return  of  officer,  sec.  23,  p.  126 
faith  and  credit  given  only  to  courts  shown  to  have  jurisdiction,  sec. 

23,  p.  127 
want  of  jurisdiction  may  be  proved  by,  sec.  23,  p.  127 
effect  of  recital  in,  of  court  of  another  state,  sec.  23,  p.  128 
tendency  is  to  permit  proof  of  want  of  jurisdiction  against  recitals 

in,  sec.  23,  p.  129 
effect  of  recitals  in,  as  evidence  of  jurisdiction,  sec.  23,  pp.  126-144; 

sec.  25,  pp.  163-165;   sec.  26,  pp.  168-170 
difference  between,  of  domestic  and  foreign  courts  in  this  respect, 
sec.  23,  pp.  141,  144.  145;  sec.  26.  i>p.  168.  169 


888  INDEX. 

Record — Continued. 

showing  want  of  jurisdiction  is  conclusive,  sec.  23,  pp.  143,  144 
power  of  court  over,  after  change  of  venue,  sec.  24,  pp.  151,  152 
inherent  power  of  court  to  amend,  sec.  27,  p.  181 
recitals  in,  may  supply  want  of  publication  of  notice,  sec.  38,  p.  286 
whether  must  affirmatively  show  regular  appointment   of  special 

judge,  sec.  61,  pp.  389,  390 
recitals  in,  of  probate  court,  effect  of,  sec,  67,  p.  434 
in  case  of  sales  of  real  estate,  sec.  76,  pp.  560,  567 
question  of  jurisdiction  must  be  determined  by,  on  habeas  corpus,  sec. 

82,  p.  649 
what  included  in,  on  writ  of  error,  sec.  84,  p.  694 
how  brought  up  by  certiorari,  sec.  86,  p.  699 
what  necessary  on  appeal,  sec.  88,  p.  735 

Recordari — 

objects  of  writ  of,  sec.  84,  p.  690 

is  now  practically  unknown,  sec.  84,  p.  690 

Removal  of  Causes— 

trom  state  to  federal  courts  when  jurisdiction  concurrent,  sec.  17, 

p.  73 
deprives  state  court  of  jurisdiction,  sec.  24,  p.  153 

Rescission— 

of  contracts  within  jurisdiction  of  courts  of  equity,  sec.  9,  p.  24 

Residence— 

eflfect  of  fraudulently   making  a  party  to  give  jurisdiction,  sec.  22, 
p.  104 

Return— 

of  officer  on  process,  effect  of  in  sustaining  jurisdiction,  sec.  22,  p. 

116;    sec.  39,  p.  287 
controls  recitals  in  records,  sec.  23,  p.  126 

where  shows  only  part  of  acts  necessary  to  give  jurisdiction,  pre- 
sumptions in  case  of,  sec.  25,  pp.  163,  164 
of  officer  as  basis  for  publication  of  constructive  notice,  sec.  38,  p.  279 

what  must  show,  sec.  38,  pp.  279,  280 
of  officer  projjer  proof  of  service  of  process  by  him,  sec.  38,  p.  287 
may  be  amended,  sec.  39,  p.  292 

when  only  upon  notice,  sec.  39,  pp.  292,  293 
found  defective  on  appeal,  effect  of,  sec.  39,  p.  293 
of  deputy  must  be  made  in  name  of  principal,  sec.  39,  p.  293 
in  attachment  proceedings  what  must  show,  sec.  74,  p.  537 
Rules  of  Court.     (See  Ixherent  Powers  of  Court.) 

extent  of  powers  of  courts  to  make  and  enforce,  sec.  27,  p.  177 
can  not  require  more  in  affidavit  for  change  of  venue  than  statute 
requires,  sec.  47,  p.  340 

s 

Sales  of  Real  Estate- 
confusion  in  decided  cases  and  causes  therefor,  sec.  76,  p.  554 
whether  courts  exercising  jurisdiction  over  are  superior  or  inferior, 

sec.  76,  pp.  554,  555 
presumptions  how  far  proceedings  for  upheld  by,  sec.  76,  pp.  554, 555 
how  facts  necessary  to  uphold  may  be  shown,  sec.  76,  p.  555 
upon  what  the  jurisdiction  depends,  sec.  76,  pp.  555,  556 
whether  legality  of  appointment  of  administrator  or  guardian  can 

be  attacked  collaterally  in,  sec.  76,  p.  556 
rule  that  it  can  not  sustained  by  weight  of  authority,  sec.  76,  p.  556 


INDEX.  889 

Sales  of  Real  Estate— Con^mw erf. 
record  showing  want  of  jurisdiction  to  appoint,  effect  of,  sec.  76,  p.  556 
record  silent,  jurisdiction  to  appoint  presumed,  sec.  76,  p.  557 
where  question  goes  to  general  power  of  court,  and  not  to  jurisdic- 
tion over  particular  estate,  different  rule  prevails,  sec.  76,  p.  557 
doctrine  of  federal  courts  as  to  right  of  another  court  to  inquire  into 

jurisdiction,  sec.  76,  p.  557 
what  necessary  to  give  court  jurisdiction  to  order  sale,  sec.  76,  p.  557 
not  sufficient  to  show  jurisdiction  over  estate,  sec.  76,  p.  557 
application  to  sell  separate  proceeding  and  jurisdiction  of  must  ex- 
ist, sec.  76,  p.  557 
power  generally  depends  upon  statute,  sec.  76,  p.  557 
but  sometimes  held  to  exist  in  court  of  equity  without  statute,  sec. 

76,  pp.  557,  558 
as  a  rule  courts  of  equity  have  no  power  to  order  sale  of  legal  title, 

sec.  76,  p.  558 
but  may  set  aside  sale,  when,  sec.  76,  p.  558 
guardian  can  not  sell  without  order  of  court,  sec.  76,  p.  558 
petition  for  sale,  foundation  of  jurisdiction,  sec.  76,  p.  558 
facts  upon  which  sale  authorized  jurisdictional,  sec.  76,  p.  558 
and  must  be  alleged  in  petition,  sec.  76,  p.  558 
substantial  compliance  with  statute  sufficient,  sec.  76,  p.  558 
what  are  the  usual  grounds  for  sale,  sec.  76,  p.  558 
defects  or  errors  do  not  affect  jurisdiction,  sec.  76,  p.  559 
one   good   cause    sufficient   although   other  causes  not  authorizing 

stated,  sec.  75,  p.  559 
not  existence  of  facts  but  allegation  of  them  gives  jurisdiction,  sec. 

76,  p.  559 
whether  allegations  true  or  false  does  not  affect,  sec.  76,  p.  559 
but  not  where  record  shows  required  proof  was  not  made,  sec.   76, 

pp.  559,  560 
if  it  appears  court  determined  jurisdictional  facts,  findings  conclu- 
sive, sec.  76,  p.  560 
any  evidence,  sufficiency  of  not  jurisdictional,  sec.  76,  p.  560 
order  of  sale  is  adjudication  of  all  facts  necessary  to  give  jurisdic- 
tion, sec.  76,  p.  560 
but  if  real  estate  goes  to  executor  only,  if  debts  exist,  if  no  debts, 

proceeding  void,  sec.  76,  p.  560 
some  of  cases  hold  finding  of  debts  only  prima  facie  evidence  of,  sec. 

76,  p.  560 
to  make  finding  conclusive,  proceeding  must  be  within  general  juris- 
diction, sec.  76,  p.  561 
courts  liberal  in  upholding,  sec.  76,  p.  561 

record  silent,  filing  of  sufficient  petition  presumed,  sec.  76,  p.  561 
petition  must  show  proceeding  brought  in  proper  county,  sec.  76,  p. 

561 
where  must  be  commenced,  sec.  76,  pp.  561,  562 
must  conform  to  laws  of  state  where  land  situated,  sec.  76,  p.  562 
but  not  necessary  ward,  or  guardian,  or  executor,  reside  there,  sec. 

76,  p.  562 
ancillary  proceedings  by  non-residents,  sec.  76,  p.  562 
minor  non-resident,  court  mav  appoint  guardian  over  property,  sec. 

76,  p.  562 
order  for  sale  of  real  estate  in  another  state  void,  sec.  76,  pp.  563,  568 
court  when  may  compel  non-resident  to  convey,  sec.  76,  p.  562 
decree,  when  can  not  operate  beyond  jurisdiction,  sec.  76,  p.  562 
some  cases  hold  strict  compliance  with  statute  necessarv,  sec.  76,  pp. 
562,  563 


890  INDEX. 

Sales  of  Real  Estate — Continued. 
but  substantial  compliance  sufficient,  sec.  76,  p.  562 
notice  necessary,  sec.  76,  p.  563 
petition  jjives  jurisdiction  of  the  subject-matter  notice  of  the  person, 

sec.  76,  p.  563 
held  sale  by  guardian,  no  notice  to  ward  necessary  unless  required 

by  statute,  sec.  7*'),  p.  563 
but  authorities  the  other  way,  sec.  76,  pp.  563,  564 
other  statutory  conditions  must  be  complied  with,  sec.  76,  p.  564 
that  have  been  complied  with  need  not  appear  from  record,  sec.  76, 

p.  564 
whether  ward  necessary  party  to  proceeding  by  guardian,  sec.  76,  p. 

authorities  conflicting,  sec.  76,  p.  564 
if  necessary  party,  must  have  notice,  sec.  76,  p.  564 
whether  heir  necessary  party  to  proceeding  by  executor  or  adminis- 
trator, sec.  76,  pp.  564,  565 
depends  upon  requirement  of  statute,  sec.  76,  p.  565 
distinction  between  sales  by  guardians  and  executors  in  this  respect, 

sec.  76,  p.  565 
personal  service  of  notice  not  necessary,  sec.  76,  p.  565 
general  notice  to  all  persons  usually  sufficient,  sec.  76,  pp.  565,  566 
death  of  owner,  when  does  not  deprive  court  of  jurisdiction,  sec.  76, 

p.  566 
rule  as  to  sufficiency  of  notice,  sec.  76,  p.  566 
failure  of  guardian  ad  litem  to  answer,  effect  of,  sec.  76,  p.  566 
failure  to  appoint  guardian  ad  litem,  eflFect  of,  sec.  76,  p.  566 
failure  to  notify  guardian  ad  litem  where  ward  served,  eflfect  of,  sec. 

76,  pp.  566,'567 
appointment  of  guardian  ad  litem  gives  no  jurisdiction  where  minor 

not  notified,  sec.  76,  p.  567 
minor  notified,  guardian  appointed,  proceeding  binding,  sec.  76,  p. 

567 
subsequent  reversal  of  order,  effect  on  purchaser,  sec.  76,  p.  567 
notice  presumed,  sec.  76,  p.  567 
but  limited  in  some  cases  to  persons  made  parties  to  the  record,  sec. 

_  76,  p.  567 
recitals  in  record  as  to  notice,  eflfect  of,  sec.  76,  pp.  567,  568 
jurisdiction  appearing  from  record,  purchaser  need  not  look  beyond, 

sec.  76,  p.  568 
usually  held  record  imports  verity,  sec.  76,  p.  568 
cases  the  other  way,  sec.  76,  p.  568 
confirmation  of  sale,  effect  of,  sec.  76,  pp.  568,  569 
proceedings  by  creditor  for  sale  of  real  estate,  principles  affecting, 

sec.  76,  p.  569 
additional  bond  for  sale,  eflfect  of  failure  to  give,  sec.  76,  p.  569 
defect  in  original  bond  does  not  affect  jurisdiction,  sec.  76,  p.  570 
proceeding  may  be  removed  to  federal  court,  sec.  76,  p.  570 
whether  legislature  may  order  sale  without  intervention  of  court, 

sec.  76,  pp.  570,  571 
can  not  where  no  fiduciary  relation  on  part  of  one  authorized  to  sell, 

sec.  76,  p.  571 
sales  in  partition  proceedings,  sec.  76,  p.  572 
Service  of  Process.     (See  Common  Law,  Jurisdiction.) 
actual  and  constructive,  what  are,  sec.  13,  p.  41 
acknowledgment  of,  in  lieu  of  actual,  sec.  13,  p.  41 
on  foreign  corporations,  how  made,  sec.  13,  p.  43 
by  leaving  copy  at  usual  place  of  residence,  sec.  13,  p.  43 


INDEX.  891 

Service  of  Process — Continued. 

on  defendant  temporarily  within  state,  sec.  13,  p.  43 
how  made  on  minor,  sec.  13,  p.  43 

constructive,  statute  must  be  strictly  complied  with,  sec.  13,  p.  43 
constructive,  how  made  in  England,  sec.  13,  p.  44 
constructive,  not  known  at  common  law,  sec.  14,  p.  51 
constructive,  provided  for  in  English  judicature  acts,  sec.  14,  p.  51 
modes  of,  generally  statutory  and  to  be  strictly  pursued,  sec.  14,  p.  51 
process  of  limited  territory  within  state,  may  extend  throughout 

state,  sec.  15,  p.  53 
process  of  one  state  can  not  run  into  another  without  consent,  sec. 

15,  p.  53 
return  of  officer  held  not  conclusive,  sec.  22,  p.  116 
sometimes  held  conclusive,  sec.  22,  p.  117 
remedy  against  officer  making  false  return,  sec.  22,  p.  117 
question  whether  has  been  made,  return  not  conclusive,  sec.  22,  p.  117 
return  conclusive  where  collateral  attack  against  domestic  judgment 

sec.  22,  p.  117 
conclusiveness  confined  to  facts  certified  of  officer's  own  knowledge, 

sec.  22,  p.  117 
of  summons  set  aside  if  deceit  practiced,  sec.  22,  p.  117 
defendant  waives  objection  by  appearing  and  pleading,  sec.  22,  p.  117 
presumptions  as  to,  sec.  25,  pp.  159-168 

statutes  of  different  states  substantially  the  same  as  to  material  mat- 
ters, sec.  37,  p.  251 
but  differ  as  to  matters  of  form,  sec.  37,  p.  251 
purpose  and  object  of  such  statutes,  sec.  37,  p.  251 
due  service  necessary  to  give  jurisdiction,  sec.  37,  p.  252 
by  whom  may  be  made,  sec.  37,  p.  252 

generally  by  officers  designated  by  statute,  sec.  37,  p.  252 

but  may  be  by  private  individuals  when  authorized  by  law,  sec. 

37,  p.  252 
when  by  special  deputies,  sec.  37,  p.  252 
distinction  between  general  and  special  deputies  as  to  power  to 

serve,  sec.  37,  p.  253 
power  of  special  limited  to  county  covered  by  appointment,  sec. 

37,  p.  253 
sc  when  limited  to  service  of  particular  writ,  sec.  37,  p.  253 
but  service  not  void  where  could  serve  as  private  individual,  sec. 
37,  p.  253 
but  proof  of  such  service  must  be  by  affidavit  and  not  by  re- 
turn sec.  37,  p.  253 
appointment  of  special  bailiff  without  seal,  effect  of,  sec.  37,  p.  254 
failure  to  indorse  appointment  on  writ,  effect  of,  sec.  37,  p.  254 
power  of  constable  tc  appoint  deputy,  and  powers  of,  sec.  37,  p.  254 
sherifl  can  not  servt  out  of  his  county,  sec.  37,  p.  254 

nor  can  private  individual,  sec.  37,  p.  254 
direction  ol  writ  to  wrong  officer,  effect  of,  sec.  37,  pp.  254,  255 
rule  where  proper  officer  is  claimed  to  be  disqualified,  sec.  37,  p. 
255 
effect  ol  service  by  private  individual,  sec.  37,  p.  255 
general  rule  that  officer  can  not  serve  process  in  his  own  case,  sec. 

37.  p.  255 
but  held  in   some  cases  rule  not  applicable  to  summons,  sec.  37, 

p.  255 
and  this  is  the  better  rule,  sec.  37,  p.  255 

onlv  objection  to  such  service  is  liability  to  false  return,  sec.  37, 
■  p.  256 


892 


INDEX. 


Service  of  Process — Continued. 

where  statute  provides  for  service  by  disinterested  person,  service 

by  interested  party  void,  sec.  37,  p.  2.t6 
conditional  authority  of  court  to  appoint  private  individual   to 
serve,  conditions  must  exist  or  service  void,  sec.  37,  p.  256 
but  will  be  presumed  if  not  required  to  be  affirmatively  stated  in 

writ,  sec.  37,  p.  256 
otherwise  if  required  to  be  stated,  sec.  37,  p.  256 
if  reasons  for  appointment  not  set  out,  when  required,  can  not  be 

amended  after  service,  sec.  37,  p.  256 
must  appear  that  private  individuals  have  statutory  qualifications, 

sec.  37,  p.  256 
indorsement  on  original  authorizing  party  to  serve  does  not  au- 
thorize service  of  alias,  sec.  37,  p.  257 
when  may  be  served,  sec.  37,  p.  257 

generally  not  before  filing  of  complaint,  sec.  37,  p.  257 
nor  after  return  day,  sec.  37,  p.  257 
alias  must  issue  in  such  case,  sec.  37,  p.  257 
held  may  be  dated,  issued  and  returned  on  return  day,  sec.  37,  p. 

257 
service  on  return  day  voidable,  not  void,  sec.  37,  p.  257 
where  may  be  served,  sec.  37,  p.  257 

not  beyond  territorial  jurisdiction  of  court  issuing,  sec.  37,  p.  257 
unless  expressly  authorized,  sec.  37,  pp.  257,  258 
but  service  out  of  jurisdiction  maybe  authorized  by  statute,  sec. 
37,  p.  258 
service  out  of  county  usually  provided  for,  sec.  37,  p.  258 

and  sometimes  out  of  state,  sec.  37,  p.  258 
non-resident  temporarily  within  state  may  be  served,  sec.  37,  p.  258 
exception  where  in   attendance  at  court  as  party  or  witness  or 

going  or  coming,  sec.  37,  p.  258 
must  have  reasonable  time  to  return  to  his  state,  sec.  37,  p.  258 
some  cases  hold  exemption  only  applies  attendance  under  writ 
involving  arrest,  sec.  37,  p.  259 
but  weight  of  authority  the  other  way,  sec.  37,  p.  259 
extends  to  persons  attending  before  officer  to  give  deposition, 
sec.  37,  p.  259 
but  not  where  deposition  to  be  used  in  another  state,  sec.  37, 
p.  259 
immunity  does  not  depend  upon  statute,  sec.  37,  p.  259 

nor  upon  citizenship,  sec.  37,  p.  259 
applies  to  resident  of  state  attending  out  of  his  county,  sec.  37, 

pp.  259,  260 
but  sometimes  held  service  on  resident  out  of  county  not  void, 

but  entitles  to  change  of  venue,  sec.  37,  p.  259 
distinction  between  resident  and  non-resident  in  case  of  arrest, 

sec.  37,  p.  259 
exception  extends  to  one  induced  to  come  within  jurisdiction, 
by  fraud,  sec.  37,  pp.  260,  261 
rule  applies  to  officer  of  corporation,  sec.  37,  p.  261 
member  of  congress  privileged  while  in  attendance  at  session 
and  going  and  returning,  sec.  37,  p.  261 
deviation  from  direct  route,  efiFect  of,  sec.  37,  p.  261 
rule  applies  to  members  of  legislature,  sec.  37,  p.  261 
in  some  cases  confined  to  process  involving  arrest,  sec.  37,  p.  261 
but  better  rule  extends  it  to  civil  process  not  involving  arrest, 
sec.  37,  p.  261 
question  of  privilege,  how  raised,  sec.  37,  p.  261 


ixDEX.  893 

Service  of  Precess — Continued. 

what  necessary  to  authorize  service  on  joint  defendant    resid- 
ing out  of  county,  sec.  37,  p.  261 
resident  defendant  must  have  real  interest  adverse  to  plaint- 
iff, sec.  37,  pp.  261,  262 
defective  service,  how  question  of  raised,  sec.  37,  p.  262 
distinction  between  void  and  defective  as  to  time  and  manner 
of  raising  objection,  sec.  37,  p.  262 
how  may  be  served,  sec.  37 

personal  service  generally  required,  sec.  37,  p.  262 
what  will  constitute  personal  service,  sec.  37,  p.  262 
leaving  copy  at  place  of  residence,  what  necessary,  sec.  37,  pp.  262, 
263 
strict  compliance  with  statute  required,  sec.  37,  p.  262 
summons  for  wife,  leaving  copy  with  husband,  effect  of,  sec.  37,  p. 

262 
generally  copy  of  complaint  must  be  served  with,  sec.  37,  p.  263 
when  required  service  of  such  copy  necessary  to  give  jurisdic- 
tion, sec.  37,  p.  263 
where  certified  copy  required,  copy  not  certified  insufficient,  sec. 
37,  p.  263 
service  on  partners,  what  sufficient,  sec.  37,  p.  263 
variance  between  copy  served  and  original,  effect  of,  sec.  37,  p.  264 
service  on  minors,  what  necessary,  sec.  37,  p.  264 
on  insane  persons,  .sec.  37,  p.  26.5 
on  married  women,  sec.  37,  p.  26-5 
on  persons  acting  in  official  caj^acity,  sec.  37,  p.  266 
■constructive  service  of  process,  sec.  38 
meaning  of,  sec.  38,  p.  266 

includes  personal  service  out  of  state,  sec.  38,  p.  266 
is  exceptional  mode  of  service,  sec.  38,  p.  266 
statutes  authorizing  must  be  complied  with,  sec   38,  p.  266 
division  of  the  subject,  sec.  38,  p.  266 
a.  in  what  cases  allowed,  sec.  38,  p.  267 

under  control  of  the  state,  sec.  38,  p.  267 

general  rule  personal  action  can  not  be  maintained  on,  sec.  38,  p. 
267 
either  against  resident  or  non-resident,  sec.  38,  p.  267 
personal  judgment,  what  is,  sec.  38,  p.  268 
allowed  in  actions  in  rem,  and  attachment,  sec.  38,  p.  269 

but  relief  confined  to  property,  sec.  38,  p.  269 
seizure  of  property  geneially  necessary,  sec.  38,  p.  270 

and  notice,  sec.  38,  p.  270 
allowed  in  cases  to  enforce  specific  liens  on  jiroperty  within-  juris- 
diction, sec.  38,  p.  270 
as  in  case  of  mortgage  on  real  or  personal  property,  sec.  38,  p. 

270 
proceedings  affecting  title  to  real  estate,  sec.  38.  p.  270 
to  set  aside  fraudulent  conveyances,  sec.  38,  p.  270 
actions  to  quiet  title,  sec.  38,  p.  270 
to  abate  nuisances,  sec.  38,  p.  270 
to  establish  trusts  in  real  estate,  sec.  38,  p.  270 
in  such  cases  jurisdiction  depends  upon  presence  of  property,  sec. 
38,  p.  270 
and  personal  judgment  can  not  be  rendered,  sec.  38,  p.  270 
allowed  in  cases  affecting  status  of  p:irties,  as  in  divorce,  sec.  38,  p 
270 


894 


INDEX. 


Service  of  "Process— Continued. 

but  can  be  no  personal  judgment  on,  as  for  alimony,  sec.  38,  p.  270 
independent  of  statute,  courts  can  not  authorize,  sec.  38,  p.  271 
courts  of  equity,  when  may  authorize  service  on  other  person  ^or 
non-resident,  sec.  38,  p.  271 
b.  the  affidavit,  sec.  38,  p.  271 
making  of,  is  jurisdictional,  sec.  38,  p.  271 
what  must  be  shown  by,  sec.  38,  pp.  271,  272 
may  be  sufficient  to  give  jurisdiction,  but  defective,  and  subject  to 

direct  attack,  sec.  38,  p.  272 
what  must  contain  governed  by  statute,  sec.  38,  pp.  272,  273 
but  every  step  required  may  be  taken  and  yet  service  be  void, 

when,  sec.  38,  pp.  272,  373 
how  fact  of  non-residence  may  be  established,  sec.  38,  p.  273 
facts  required  to  be  stated  in,  can  not  be  supplied  by  other  evi- 
dence, sec.  38,  p.  273 
held  not  to  be  part  of  judgment  roll,  sec.  38,  pp.  273,  274 
and  that  was  made  will  be  presumed,  sec.  38,  p.  274 
must  appear  from  that  case  is  one  for  constructive  notice,  when, 

sec.  38,  p.  274 
when  complaint  may  be  looked  to  for  cause  of  action,  sec.  38,  pp. 

274,  275 
general  statement  of  cause  of  action  sufficient,  sec.  38,  p.  275 
not  always  sufficient  to  follow  language  of  statute,  sec.  38,  p.  275 
diligence  to  find  defendant  for  personal  service,  what  showing  of 
necessary,  sec.  38,  pp.  275,  276,  277 
facts  as  to  what  was  done  must  be  stated,  sec.  38,  p.  275 
but  any  facts  tending  to  show,  gives  court  jurisdiction  to  deter- 
mine question,  sec.  38,  p.  275 
what  constitutes  due  diligence  can  not  be  definitely  stated,  sec.  38, 

pp.  275,  276 
allegation  of  property  within  jurisdiction,  how  must  be  made,  sec. 

38,  p.  276 
what  may  be  stated  on  information  and  belief,  sec.  38,  p.  276 
that  defendant  is  out  of  state  must  be  positive  and  direct,  sec. 
38,  p.  276 
absence  from  state,  what  sufficient,  sec.  38,  pp.  276,  277 
strictness  required  in  stating  nature  of  action,  sec.  38,  p.  277 
name  of  party  to  be  published  against  necessary,  sec.  38,  p.  277 
except  where  defendant  may  be  sued  under  fictitious  name,  sec. 

38,  p.  277 
then  must  be  shown  that  true  name  is  unknown,  sec.  38,  p.  277 
false  statement  of  cause  of  action  in,  effect  of,  sec.  38,  p.  211 

does  not  affect  jurisdiction        court,  sec.  38,  p.  278 
of  non-residence  must  relate  to  time  of  order  lor  publication,  sec. 
38,  p.  278 
how  near  the  time  must  be  made,  sec.  38,  p.  278 
need  not  be  made  at  time  complaint  is  filed,  sec.  38,  p.  278 
in  some  states  complaint  must  be  filed  after  proof  of  publica- 
tion, sec.  38,  p.  278 
and  if  filed  before,  judgment  void,  sec.  38,  p.  278 
when  affidavit  may  be  amended,  sec.  38,  p,  279 
difficulty  of  making  personal  service  no  ground  for  publication, 

sec.  38,  p.  279 
insufficiency  of  complaint  not  ground  for  attacking  notice,  sec.  38, 
p.  279 
C.   officers  return  as  basis  for  publication,  sec.  38,  p.  279 
facts  necessary  for,  when  may  be  shown  by,  sec.  38,  p.  279 


INDEX.  895 

Service  of  Process — Continued, 

what  must  be  shown  by,  sec.  38,  p.  279 

d.  order  of  publication,  sec.  38,  p  280 

must  require  all  acts  to  be  done  that  statute  requires,  sec.  38,  p. 

280 
is  the  authority  for  making  the  service,  sec.  38,  p.  280 

and  proper  service  without  necessary  order  therefor  is  void,  sec. 
38,  p.  280 
what  order  must  contain,  sec.  38,  pp.  280,  281 

e.  the  publication,  sec.  38,  p.  281 

what  must  be,  governed  by  statute,  sec.  38,  p.  281 
in  some  states  summons  published,  sec.  38  p.  281 
in  others  notice  containing  its  substance,  sec.  38,  p.  281 
irregularities  do  not  render  void,  sec.  38,  p.  281 

but  distinction  in  this  respect  between  personal  and  constructive 
service,  sec.  38,  pp.  281,  282 
publication  for  less  than  required  time,  eflFect  of,  sec.  38,  pp.  282,  283 
rule  in  cases  of  petition  by  guardian  for  sale  of  ward's  property, 

sec.  38,  p.  283  _ 

petition  said  to  give  jurisdiction  in  such  cases,  sec.  38,  p.  283 
relief  demanded  of  which  notice  is  given  limits  jurisdiction  to 

granting  such  relief,  when,  sec.  38,  p.  284 
death  of  defendant  pending  publication,  new  notice    necessary, 

sec.  38,  p.  284 
where  publication  measured  by  months,  calendar  months  meant, 

sec.  38,  p.  284 
what  is  sufficient  length  of  time  for  publication,  sec.  38,  p.  284 

f.  proof  oj  publication,  sec.  38,  p.  284 

validity  of  judgment  does  not  depend  upon,  sec.  38,  p.  284 

but  upon  fact  of  publication,  sec.  3S,  p.  284 

therefore  may  be  supplied  after  judgment,  sec.  38,  p.  285 

and  may  be  amended,  sec.  38,  p.  285 
failure  to  make  is  irregularity  merely,  sec.  38,  p.  285 
but  judgment  void  on  face  right  to  sujjply  or  amend  subject  to  in- 
tervening rights,  sec.  38,  p.  285 
facts  of  publication  may  be  established,  how,  sec.  38,  p.  285 
by  whom  affidavit  may  be  made,  sec.  38,  p.  285 
■warning  order  takes  place  of  summons,  and  proof  the  place  of 

officers'  return,  sec.  38,  p.  286 
facts  appearing  in,  by  way  of  recital,  effect  of,  sec.  38,  p.  286 
after  many  years  slight  proof  sufficient,  sec.  38,  p.  286 

g.  personal  service  out  of  state,  sec.  38,  p.  286 
is  constructive  service,  sec.  38,  p.  286 

and  allowed  on  like  showing  as  for  publication,  sec.  38,  p.  286 
and  usually  length  of  service  the  same,  sec.  38,  p.  286 
proof  of  personal  service  of  process,  sec.  39 

service,  not  proof  of,  gives  jurisdiction,  sec.  39,  p.  287 
service  by  officer,  proof  of  by  his  return,  sec.  39,  p.  287 
by  private  individual,  by  his  affidavit,  sec.  39,  p.  287 
but  such  modes  not  exclusive,  but  proof  may  be  made  otherwise, 
sec.  39,  p.  287 
but  sometimes  held  can  not  be  by  parol,  sec.  39,  p.  287 
and  this  so  where  question  arises  on  appeal,  sec.  39,  pp.  287,  288 
facts  necessary  to  show  valid  service  must  be  shown,  sec.  39,  p.  288 
competency  of  private  individual  to  serve  must   be  shown,  when, 
sec.  39,  p.  288 
but  failure  to  show  mere  irregularity,  sec.  39,  p.  288 
in  other  respects  return  and  affidavit  the  same,  sec.  39,  p.  288 


S96  INDEX. 

Service  of  Process — Continued. 

what  sufficient  to  be  shown,  sec.  39,  pp.  288,  289 

service  of  copy  of  complaint  must  appear,  when,  sec.  39,  p.  289 

and  certified  copy,  sec.  39,  p.  289 
how  writ  must  be  delivered,  sec.  39,  p.  289 
service  by  mail,  what  sufficient  proof  of,  sec.  39,  p.  289 
strictness  required  where  service  by  leaving  copy,  sec.  39,  p.  290 
must  show  place  of  service,  sec.  39,  j^.  290 

but  when  will  be  presumed  to  have  been  within  jurisdiction,  sec. 
39,  p.  290 
failure  to  give  name  of  party  served,  service  a  nullity,  sec.  39,  p.  290 
variance  in  name  in  summons  and  return,  effect  of,  sec.  39,  p.  290 
action  against  husband  and  wife,  effect  of  proof  of  service  on  bus- 
band,  sec.  39,  p.  290 
proof  necessary  where  service  allowed  on  one  person  if  another 
not  found,  sec.  39,  p.  291 

service  not  shown  by  acceptance  of,  sec.  39,  p.  291 

by  third  party,  authority  must  appear,  sec.  39,  p.  291 

can  not  be  made  by  a  minor,  or  by  guardian  for  him,  sec.  39,  p. 
291 

genuineness  of  signature  to  acceptance  must  be  shown,  when, 
sec.  39,  p.  291 
service  out  of  state,  what  necessary,  sec.  39.  p.  292 
what  necessary  as  to  time  of  service,  sec.  39,  p.  292 
return  may  be  amended  even  after  judgment,  sec.  39,  p.  292 

but  subject  to  intervening  rights,  when,  sec.  39,  p.  292 

must  be  upon  notice,  when,  sec.  39,  p.  292 
found  defective  on  appeal,  effect  of,  sec.  39,  p.  293 
when  verification  of  return  necessary,  sec.  39,  p.  293 
by  deputy,  must  be  in  name  of  principal,  sec.  39,  p.  293 
by  special  deputy,  how  proof  made,  sec.  39,  p.  293 
need  not  appear  that  service  was  by  deputy,  when,  sec.  39,  p.  293 
effect  of  return  in  name  of  special  deputy,  sec.  39,  p.  294 
time  when  return  should  be  made,  sec.  39,  p.  294 
effect  of  return,  whether  conclusive  or  not,  sec.  39,  p.  294 
proof  by  private  individual  may  be  contradicted,  sec.  39,  p.  295 
defects  in  return  not  ground  for  quashing  writ,  sec.  39,  p.  295 
due  service,  when  presumed,  sec.  39,  p.  295 
but  proof  showing  insufficient  service  not  aided  by  presumption, 

when,  sec.  39,  p.  295 
degree  of  exactness  required  in  proof,  sec.  39,  p.  295 
distinction  between  personal  and  constructive  service,  sec.  39,  pp. 

295,  296 
question  on  appeal  not  necessarily  one  of  jurisdiction,  sec.  39,  p. 

jurisdiction  should  not  be  allowed  to  fail  for  want  of  formal  proof, 
sec.  39,  pp.  296,  297 
defective  process  and  service,  sec.  40 

distinction  between  defective  and  void  service,  sec.  40,  pp.  297,  299 
former  confers  jurisdiction,  latter  not,  sec.  40,  p.  297 
latter  ground  for  collateral  attack,  former  not,  sec.  40,  p.  297 
proof  may  be  amended,  sec.  40,  p.  298 
when  can  not  be  amended  after  appeal,  sec.  40,  p.  298 
distinction  between  actual  and  constructive  service  as  to  eflfect  of, 
sec.  40,  pp.  298,  299 
waiver  of  process  and  service  and  defects  f herein,  sec.  41 
effect  of  general  appearance,  sec.  41,  p.  300 
is  equivalent  to  service,  sec.  41,  p.  300 


INDEX.  897 

Service  of  Process — Continued. 

persons  under  disabilities  can  not  waive,  sec.  41,  p.  300 
nor  can  their  guardians,  sec.  41,  p.  300 
exceptions  in  case  of  guardians,  sec.  41,  p.  300 
service  on  minor  necessary  to  authorize  appointment  of  guardian 
ad  litem,  sec.  41,  p.  301 
and  person  appointed  can  do  no  act  conferring  jurisdiction,  sec. 

41,  p.  301 

effect  of  such  appointment  and  appearance,  sec.  41,  pp.  301,  302 
distinction  between,  and  failure  to  appoint  where  there  is  serv- 
ice, sec.  41,  p.  302 
recitals  in  record  binding  on  minors,  sec.  41,  p.  302 
when  service  on  minor  not  necessary  to  give  jurisdiction,  sec.  41, 
p.  302 
in  case  of  petitions  in  proceedings  not  adversary,  sec.  41,  p.  302 
attorney  can  not  waive  service  on  minor,  sec.  41,  p.  303 
receipt  of  benefits  of  judgment,  effect  of,  as  waiver,  sec.  41,  p.  303 
agreement  to  waive  return  of  service,  effect  of,  sec.  41,  p.  303 
summons  by  wrong  name,  effect  of  appearance,  sec.  41,  p.  303 
setting  up  objections,  effect  of,  as  waiver  of  other  objections,  sec. 

41,  p.  303 

failure  to  appear  and  object,  effect  of,  sec.  41,  p.  303 
time  within  which  objection  to  defects  may  be  taken,  sec.  41,  p.  304 
relief  on  account  of  fraud,  sec.  41,  p.  304 
acceptance  of  service,  effect  of,  as  a  waiver,  sec.  41,  p.  304 
authority  of  agent  to  waive,  sec.  41,  p.  304 

waiver  without  appearance,  how  may  be  done,  sec.  41,  pp.  304,  305 
bringing  action  in  wrong  county,  how  waived,  sec.  41,  p.  305 
appearance  and  contest  of  service  does  not  waive  right  to  writ  of 
error,  sec.  41,  p.  305 
of  new  parties  and  amended  pleadings,  sec.  42 

when  new  parties  made  how  jurisdiction  obtained,  sec.  42,  p.  305 
no  new  service  necessary  when  new  parties  plaintiff  made,  sec. 

42,  p.  305 

auxiliary  proceedings  in  equity  service  maybe  made  on  attorneys, 

when,  sec.  42,  p.  305 
an  amendment  of  complaint  where  no.  appearance,  when  new 

service  necessary,  sec.  42,  p.  306 
new  parties  when  new  service  on  original  parties  necessary,  sec. 

42,  p.  306 

presumptions  in  such  cases,  sec.  42,  p.  306 

substituted  plaintiff,  no  new  process  necessary,  sec.  42,  pp.  306,  307 

or  where  name  of  plaintiff  stricken  out,  sec.  42,  p.  307 
in  case  of  death  of  defendant  and  substitution  of  representative 
or  heir,  what  notice  necessary,  sec.  42,  pp.  307,  308 
\yhen  cause  pending  on  writ  of  error,  sec.  42,  p.  3o7 
decision  after  death  relates  back,  sec.  42,  p.  307 
on  reversal  what  necessary  in  court  below  in  case  of  death,  sec.  42, 
p.  307 
in  actions  against  corporations,  sec.  43 

manner  of  making  service  on,  difference  between  and  on  natural 

persons,  sec.  43,  p.  308 
statutes  compelling  submission  of  to  service  out  of  state  as  condi- 
tion of  doing  business,  sec.  43,  p.  308 
con.stitutionality  of  such  statutes  upheld,  sec.  43,  p.  308 
conditions  must  be  reasonable,  sec.  43,  pp.  308,  309 

57 


898 


INDEX. 


Service  of  Process — Continued. 

right  to  serve  in  state  other  than  that  of  Its  creation  wholly  statu- 
tory, sec.  43,  p.  3U9 

right  to  sue  in  foreign  state  not  confined  to  actions  growing  out  of 
business  done  therein,  sec.  43,  p.  309 

distinction  as  to  corporations  acting  under  interstate  commerce 
law,  sec.  43,  p.  310 

corporation  not  a  citizen  within  meaning  of  constitution,  sec.  43 
p.  310 
and  state  may  impose  conditions  upon  which  it  may  do  business 
therein,  sec.  43,  p.  311 

right  to  trial  within  county  or  state  of  residence  a  personal  privi- 
lege and  may  be  waived,  sec.  43,  p.  311 

corporation   doing   business   in   state  where   conditions   imposed 
waives  right  to  be  sued  elsewhere,  sec.  43,  p.  31 1 

but  can  not,  independently  of  such  statute,  be  sued  out  of  its 
state,  sec.  43,  pp.  311,  312 

upon  whom  service  on  may  be  made,  sec.  43,  pp.  313-316 

as  to  manner  of  service  statute  must  be  strictly  pursued,  sec.  43, 
p.  316  . 

"station  agent,"  meaning  of,  sec.  43,  p.  316 

return  of  officer  as  to  kind  of  officer  served,  effect  of,  sec.  43,  p. 
316 

service  on  two  officers  required,  service  on  one  insufficient,  sec.  43, 
pp.  316,317 

"general  agent"  and  "managing  agent,"  meaning  of,  sec.  43,  pp. 
317,  318 

may  be  sued  in  any  county,  sec.  43,  p.  318 

agent  or  officer  can  not  be  served  outside  of  territory  he  repre- 
sents, sec.  43,  pp.  318,  319 
or  outside  of  county  in  which  public  corporation  is  situated,  sec. 
43,  p.  319 

service  on  officer  in  foreign  state,  must  be  at  the  time  acting  for 
the  corporation  in  such  state,  sec.  43,  p.  319 

service  may  be  on  mere  clerk  if  statute  authorizes,  sec.  43,  p.  319 

what  will  amount  to  such  doing  business  as  to  authorize  service  in 
foreign  state,  sec.  43,  pp.  319,  320 

presence  of  officers  alone  will  not  authorize,  when,  sec.  43,  p.  320 

service  by  publication  may  be  had,  when,  sec.  43,  p.  321 

when  may  be  sued   in   .-^tate  of  residence  of  either  plaintiflF  or  de- 
fendant, sec.  43,  p.  322 

sometimes   right   to   serve   depends   upon   presence   of   property 
within  jurisdiction,  sec.  43,  p.  322 

in  federal  court,  law  of  state  in  which  court  held  controls,  when, 
sec.  43,  pp.  322,  323 
different  rule  as  to  service  where  corporation  created  by  act  of 

congress,  sec.  43,  p.  323 
may  be  sued  in  any  state  where  is  doing  business,  sec.  43,  p.  323 

doing  business  in  another  state  does  not  change  place  of  citizen- 
ship, sec.  43,  pp.  323,  324 
where  cross-complaint  is  filed,  sec.  44 

new  yjarties  brought  in  by,  must  be  served,  sec.  44,  p.  324 

but  if  against  parties  before  the  court,  not  nece.ssary,  sec.  44,  p.  324 

when  party  must  take  notice  of  all  pleadings  filed,  sec.  44,  p.  324 

where  service  is  not  necessary  in  case  of  default  under  original 
complaint,  sec.  44,  p.  324 
when  service  of  pleading,  without  summons,  sufficient,  sec.  44, 
p.  324 


INDEX.  899 

Service  of  Process — Continued. 

stranger  coming  in  and  setting  up  cause  of  action,  summons  must 
issue,  sec.  44,  p.  325 

in  equity,  service  may  be  made  on  attorney,  sec.  44,  p.  325 
Set-off.     (See  Counterclaim.) 

Sheriff- 
power  of  to  appoint  deputies,  sec.  37,  pp.  252,  254 
can  not  serve  process  out  of  his  county,  sec.  37,  p.  254 
disqualified,  who  must  serve  process,  sec.  37,  p.  255 

Special  Cases  and  Proceedings— 

what  are,  sec.  68,  p.  461 

courts  have  not  been  able  to  define,  sec.  68,  p.  462 

or  find  dividing  line  between,  and  ordinary  actions,  sec.  68,  pp.  462, 
463 

no  reason  for  distinction  between,  and  actions,  sec.  68,  pp.  461,  462, 
463 

question  important  because  court  exercising  jurisdiction  over  special 
cases  held  to  be  inferior,  sec.  68,  p.  463 

probate  proceedings  classed  as  special  in  some  codes,  sec.  68,  p.  463 
but  probate  courts  usually  held  not  to  be  inferior,  sec.  68,  p.  463 

strictness  necessary  in  complying  with  statutory  requirements,  sec. 
68,  p.  464 

no  reason  for  distinction  between,  and  common-law  proceedings  in 
this  respect,  sec.  68,  p.  464 

and  rule  of    strict  compliance  usually   confined  to  summary   pro- 
ceedings, sec.  68,  p.  464 

finding  of  facts  to  give  jurisdiction  conclusive,  sec.  68,  p.  464 

petition  filed  what  must  show  to  give  jurisdiction,  sec.  68,  p.  465 

rule  with    reference    to    special   proceedings   generally  same  as  in 
case  of  inferior  courts,  sec.  68,  p.  465 

what  are  made  special  by  the  codes,  sec.  68,  p.  465 

courts  held  many  of  them  not  to  be  special,  sec.  68,  p.  465 

cases  held  not  to  be  enumerated,  sec.  68,  p.  466 

classed  as  in  code  does  not  make  case  special,  sec.  68,  p.  467 

proceedings  held  to  be  special  enumerated,  sec.  68,  pp.  467,  468 

proceedings  by  executors,  etc.,  to  sell  real  estate,  how  classed,  sec. 
68,  p.  468 
presumptions  in  favor  of,  sec.  68,  p.  468 

power  given   legislature  to  confer  jurisdiction  in  special  cases,  ef- 
fect of,  sec.  68,  pp.  468,  469 

what  "special  cases"  held  to  include,  sec.  68,  p.  469 
and  "  special  proceedings,"  sec.  68,  p.  469 

statute  giving  jurisdiction  of  "all  special  cases  not  otherwise  pro- 
vided for,"  effect  of,  sec.  68,  p.  469 
Special  Judges.     (See  Judges;  Jurisdiction,) 

how  appointed  and  powers  and  duties  of,  sec.  61,  pp.  386-395 

when  attorney  may  be  appointed  as,  sec.  61,  p.  387 

statutes  authorizing  appointment  of,  held  unconstitutional,  sec. 
61,  p  387 

that  was  legally  appointed,  when  presumed,  sec.  61,  p.  389 

whether  record  must  show  legal  appointment,  sec.  61.  pp.  389,  390 

acts  of,  may  be  upheld  as  de  far.io  officer,  sec.  61,  p.  391 

when  acts  of,  not  void  for  want  of  regular  appointment,  sec.  61,  p. 
391 

failure  to  take  oath,  effect  of,  sec.  61,  p.  392 


900 


INDEX. 


Special  Jurisdiction.     (See  Courts;   Interior  Courts;  Jurisdiction; 
Probatk  Jurisdiction;  Sales  of  Reai,  Estate.) 
can  only  be  exercised  as  provided  by  statute,  sec.  10,  p.  29;  sec.  20 

pp.  87,  88 
same  rule  whether  court  one  of  special  or  general  jurisdiction,  sec. 

20  p.  88;  sec.  25,  p.  156 
proceedings  of  court  must  show  on  their  face  that  statute  has  been 

followed,  sec.  20,  p.  88 
technical  precision  not  required,  sec.  20,  p.  88 
liberality  in  upholding  jurisdiction  of  courts  of,  sec.  20,  p.  89 
jurisdictional  steps  to  be  taken,  what  are,  sec.  20,  p.  89 

aflfecting  subject-matter  can  not  be  supplied  by  waiver  or  consent, 
sec.  20,  pp.  89,  90 
personal  notice  may  be  waived,  sec.  20,  pp.  89,  90 
notice  affecting  public  can  not  be  waived,  sec.  20,  p.  89 
test  to  determine  whether  step  required  aflPects  person  or  subject- 
matter,  sec.  20,  p.  90 
limited,  what  necessary  to  show  jurisdiction,  sec.  20,  p.  91 
properly  acquired,  must  be  exercised  in  conformity  to  statute,  sec. 

20,  p.  93 
discretion  of  court  of,  can  not  be  controlled  by  another  court,  sec. 

20,  p.  93 
power  to  set  aside  final  judgment  not  incident  to  court  of,  sec.  20, 
p.  93 
if  authorized,  mode  provided  must  be  followed,  sec.  20,  p.  93 
power  of  court  of,  where  right  to  proceed  is  given  to  designated  peg- 
sons,  sec.  20,  p.  94 
what  record  must  show  in  such  case,  sec.  20,  p.  94 
summary,  statute  must  be  strictly  pursued,  sec.  20,  p.  94 
not  summary,  substantial  compliance  sufficient,  sec.  20,  p.  94 
conferred  on  court  of  general  jurisdiction,  court  is  inferior  as  to,  sec. 

20,  p.  94;  sec.  25,  p.  156 
special  mode  of  acquiring  jurisdiction  of  non-resident,  strict  com- 
pliance with  statute  necessary,  sec.  20,  p.  95 
recital  in  record  showing  compliance  with  statute,  effect  of,  sec.  20, 

pp.  96,  97 
when  jurisdiction  is  special,  sec.    25,  pp.  156-162 
no  presumption  in  favor  of  proceedings  of  courts  of,  sec.  25,  p.  155 
statutory  not  necessarily  special,  sec.  25,  pp.  158-161 
jurisdiction  of  federal  courts  not  special,  sec.  25,  p.  162 
once  attached,  presumption  that  was  ijroperly  exercised,  sec.  25,  p. 

166 
of  probate  courts,  whether  are  or  not,  sec.  67,  p.  633 
in  special  cases  and  proceedings,  sec.  68,  pp.  461-469 
whether  is,  in  proceedings  for  sale  of  real  estate,  sec.  76,  p.  560 
in  mandamus,  is  not,  sec.  80,  p.  627 

Specific  Performance  - 

courts  of  equity  have  jurisdiction  of,  sec.  9,  p.  24 
whether  action  for,  of  contract  to  convey  real  estate  is  local  or  transi- 
tory, sec.  12,  p.  33 ;  sec.  15,  p.  53 
held  court  of  one  state  may  compel,  of  contract  to  convey  property 
in  another,  sec.  12,  p.  34;  sec.  15,  p.  53 
but  this  is  doubtful,  sec.  15,  p.  53 
State— 

m.ay  provide  notice  necessary  to  be  given  to  their  own  citizens,  sec. 
33,  p.  213 


INDEX.  901 

State — •  Continued. 
personal  service  witnin,  when  necessary  to  give  jurisdiction,  sec.  33, 

pp.  213,  214 
can  not  authorize  taking  of  property  of  own  citizen  without  notice, 

sec.  33,  pp.  214,215 
how  far  may  exercise  police  powers  without  taking  property  without 

due  process  of  law,  sec.  33,  p.  221 
may  change  remedy  and  courts  to  which  party  may  resort,  sec.  33. 

p.  224 
power  of,  to  substitute  constructive  for  personal  service,  sec.  38,  ji.  • 

267 
judge  can  not  act  out  of,  sec.  57,  p.  372 

Statute- 
creating  court,  effect  of  repeal  of  on  jurisdiction,  sec.  24,  p.  147 
requiring  inferior  courts  to  act  within  limited  time,  effect  of  failure 

to  comply  with,  sec.  24,  pp.  148,  149 
jurisdiction  given  by,  not  necessarily  special,  sec.  2.'),  pp.  158-163 
making  action  of  officer  conclusive  without  notice  and  hearing  in 

assessment  for  public  improvement  void,  sec.  33,  pp.  220,  221 
remedy  may  be  changed  by,  sec.  33,  p.  224 
how  far  remedy,  procedure  and  rights  may  be  changed  by,  sec.  33,  p. 

224 
when  constitutionality  of  may  be  inquired  into  by  habeas  corpus,  sec. 

82,  p.  646 
and  by  quo  warranto,  sec.  83,  p.  667 

Statutory  Jurisdiction— 

not  neces.sarily  special,  sec.  25,  pp.  158-161 

irttermingled  with  common  law  and  equity,  sec.  66,  p.  420 

remedies  provided  by  statute  that  did  not  formerly  exist,  sec.  66,  p. 

421 
considered  as  exceptional,  sec.  65,  p.  425 
common  law  and  equity  granted  by  statute,  sec.  65,  p.  421 

and  is  really  statutory,  sec.  65,  p.  422 
probate  jurisdiction  has  become,  sec.  67,  p.  431 
in  divorce  cases  is,  sec.  73,  pp.  505,  506 
in  arrest  and  bail,  sec.  78,  p.  585 
in  injunctions  has  become,  sec.  79,  p.  588 
in  prohibition  is,  sec.  80.  p.  627 
in  quo  luarranto  is,  sec.  83,  p.  661 
appeals  are,  sec.  88,  p.  727 

Subject-matter.     (See  .Jurisdiction.) 
of  an  action,  what  is,  sec.  12,  p.  32 
jurisdiction  of,  can  not  be  conferred  by  consent  of  parties,  sec.  10, 

p.  29;   sec.  II,  p.  30;  .sec.  20.  p.  89 
courts  of  general  powers  presumed  to  have  jurisdiction  over,  sec. 

11,  p.  31 
jurisdiction  of,  may  be  given  by  agreed  statement,  sec.  12,  p.  33 

affidavit  that  controversy  real  necessary,  sec.  12,  p.  33 
when  appellate  court  has,  on  appeal  from  lower  court  not  having 

jurisdiction  of  sec.  12,  p.  34 
teat  to  distinguish  between  jurisdiction  of,  and  of  person,  sec.  20, 

p.  90 
limited  jurisdiction  over,  how  must  be  shown,  sec.  20,  p.  91 
want  of  jurisdiction  of  can  not  be  waived,  sec   22,  p.  118 
presumptions  as  to  jurisdiction  of,  sec.  25 
judgment  without  jurisdiction  of,  void,  sec.  26,  p.  168 


902 


INDEX. 


Subject-matter —  Continued. 

objection  to  jurisdiction  over,  not  waived  by  appearance,  sec.  34, 

pp.  228.232 
bringing  action  in  wrong  place,  effect  of,  on  jurisdiction  over,  sec. 

46,  pp.  427-434 

Subpoena- 
first  process  in  equity,  upon  commencement  of  suit,  sec.  35,  p.  235 
writs  following  to  compel  service,  sec.  35,  p.  235 
mode  of  compelling  obedience  to,  sec.  35,  p.  236 

Summary  Jurisdiction- 
includes  exercise  of  inherent  powers,  sec.  27,  p.  171;  sec.  30,  p.  196 
generally  regulated  by  statute,  sec.  30,  p.  197 
statutes  must  be  strictly  pursued,  sec.  30,  p.  198 
against  attorneys  for  misconduct,  sec.  31,  p.  198 

Summary  Proceedings— 

when  United  States  may  collect  debts  by,  sec.  33,  p.  212 

Summons.     (See  Process  and  Service  of  Process.) 

objection  that  not  properly  served,  how  raised,  sec.  22,  pp.  106,  108, 
109 
may  be  signed  by  attorney  in  some  states,  sec.  32,  p.  205 

but  are  not  process  of  the  court,  but  mere  notice,  sec.  32,  p.  205 
original  and  other  common  law  writs  to  compel  appearance  super- 
seded by,  sec.  35,  p.  236 
defined,  sec.  35,  pp.  236,  237 
not  satisfactory  definition,  sec.  35,  p.  237 

object  is  to  give  notice  and  opportunity  to  appear,  sec.  35,  p.  237 
means  of  acquiring  jurisdiction  of  the  person,  sec.  35,  p.  237 
is  sometimes  signed  by  attorney  for  plaintifF,sec.  35,  p.  237 
in  some  states  called  a  citation,  sec.  35,  p.  237 
generally  must  issue  under  seal  of  court,  sec.  35,  p.  237 
publication  of  constructive  service,  sec.  35,  p.  239 

requisites  of,  sec.  36,  pp.  239-251 

may  be  amended  by  attaching  seal,  sec.  36,  p.  246 

without  a  seal  not  void,  sec.  36,  p.  246 

required  to  run  in  name  of  state,  sec.  36,  p.  247 

but  failure  renders  irregular  not  void,  sec.  36,  p.  247 

issuing  is  ministerial  act,  sec.  36,  p.  247 

clerk  may  issue  in  his  own  behalf,  sec.  36,  p.  248 

directed  to  wrong  officer,  effect  of,  sec.  36,  p.  248 

issued  on  Sunday,  effect  of,  sec.  36,  p.  249 

when  must  issue,  sec.  36,  p.  249 

alias,  when  may  issue,  sec.  36,  p.  249 

return  day,  what  is,  sec.  36,  p.  249 

made  returnable  at  wrong  time,  effect  of,  sec.  36,  pp.  249,  250 

first  term  of  court  usually  made  return  day,  sec.  36,  p.  250 

returnable  on  legal  holiday  not  void,  sec.  36,  p.  250 

name  of  attorney,  failure  to  indorse  on,  effect  of,  sec.  36,  pp.  250, 

251 
may  be  aided  by  complaint,  sec.  36,  p.  251 

service  of,  sec.  37,  p.  251 

time  and  manner  of  governed  by  statute,  sec.  37,  p.  251 

by  whom  service  may  be  made,  sec.  37,  252 

direction  to  wrong  officer,  effect  of,  sec.  37,  p.  254 

presumptions  in  favor  of  service,  sec.  37,  p.  255 

can  officer  serve  in  his  own  behalf,  sec.  37,  pp.  255,  256 

by  interested  party  when  void,  sec.  37,  p.  2-56 

when  court  may  appoint  private  person  to  serve,  sec.  37,  p.  256 


INDEX.  003 

Summons —  Continued. 

qualifications  of  private  persons,  when  must  be  shown,  sec.  37,  p. 
256 

indorsement  authorizing  person  to  serve  original  does  not  author- 
ize to  serve  alias,  sec.  37,  p.  257 
when  may  be  served,  sec.  37,  p.  257 

where  may  be  served,  sec.  37,  pp.  257-262 

out  of  state,  effect  of,  sec.  37,  p.  258 

witness  or  party  in  attendance  at  court  privileged  from,  sec.  37,  pp. 
258,  259 

extends  to  attendance  before  referee  to  give  deposition,  sec.  37, 
p.  259 

privilege  extends  to  one  induced  to  come  within  the  state  by  fraud, 
sec.  37,  p.  260 

and  to  members  of  congress  and  of  the  legislature  while  in  attend- 
ance at  and  coming  and  going  from  session,  sec.  37,  p.  261 

question  of  privilege,  how  raised,  sec.  37,  p.  261 
how  must  be  served,  sec.  37,  pp.  262-264 

service  of  on  minors,  how  made,  sec.  37,  p.  264 

service  of  on  insane  persons,  how  made,  sec.  37,  p.  265 

service  on  persons  acting  in  official  capacity,  sec.  37,  p.  266 

constructive  service  of,  sec.  38,  p.  266.     (See  Constkuctive  Service 
OF  Process.) 

when  necessary  on  filing  cross-complaint,  sec.  44,  p.  324 

Sunday- 
courts  can  not  transact  business  on,  sec.  19,  p.  82 
except  in  certain  cases,  sec.  19,  p.  82 

rule  at  common  law  as  to  legal  proceedings  on,  sec.  19,  p.  83 
departures  from  common  law  rule,  sec.  19,  p.  83 
verdict  of  jury  may  be  received  on,  sec.  19,  p.  82 
court  may  reinstruct  jury  on,  sec.  19,  p.  82' 
judgment  can  not  be  rendered  on,  sec.  19,  p.  83 
summons  issued  on,  when  upheld,  sec.  36,  p.  249 

Supreme  Court  of  Judicature.    (See  Courts). 

a  consolidation  of  common  law,  equity,  admiralty,  ecclesiastical,  and 

bankruptcy  courts,  in  England,  sec.  3,  p.  3 
consists  of  two  permanent  divisions,  viz.,  the  high  court  of  justice 

and  the  court  of  appeals,  sec.  3,  p.  3 
high  court  of  justice  originally  divided  into  five  divisions: 

a.  chancery  division 

b.  queen's  bench  division 

c.  common  pleas  division 

d.  exchequer  division 

e.  probate,  divorce,  and  admiralty  division,  sec.  3,  p.  3 
divisions  may  be  changed  by  court,  sec.  3,  p.  4 

business  of  common   pleas  and  exchequer  transferred  to  queen's 

bench  division,  sec.  3,  p.  4 
practice  and  forms  of  proceedings  in,  found  in  rules  and  orders  of 

court,  sec.  3,  p.  4 
judges  of,  how  distributed  to  divisions,  sec.  3,  p.  4 
Supreme  Court  of  United  States.    (See  Federal  Courts.) 

T 

Taxes.     (See  Injunctions.) 

on  what  grounds  court  of  equity  will  enjoin  enforcement  of,  sec.  79, 
pp.  6b0-607 


904 


INDEX. 


Terms  of  Court.     (See  Courts;  Judges;  Vacation.) 

parties  can  not  stipulate  for  trial  out  of  term  time,  sec.  19,  p.  81 
acts  performed  by  judge,  and  not  by  court,  may  be  done  out  of  term, 

sec.  19,  p.  81 
acts  performed  by  court  must  be  done  in  term  time,  sec.  19,  p.  81 
judge  can  not  fix,  unless  expressly  authorized  by  statute,  sec.  19,  p.  82 
special,  what  necessary  to  give  jurisdiction  during,  sec.  19,  p.  82 
court  may  regulate  times  of  sitting  and  adjournment  during,  sec.  19, 

p.  84 
proceedings  begun  on  second  day  of,  where  court  absent  on  first,  are 

valid,  sec.  19,  p.  84 
effect  on  power  of  court  over  its  records  by  final  adjournment,  sec.  19, 

p.  84 
where  causes  may  be  heard  at  special,  by  consent  of  parties,  consent 

necessary  to  give  jurisdiction,  sec.  19,  p.  85 
as  to  whether  court  can  hold  over  after  to  complete  trial,  quare,  sec. 

19,  p.  85 
can  not  be  shortened  by  adjournment,  sec.  19,  p.  85 
judgment  can  not  be  rendered  in  vacation,  sec.  19,  pp.  84,  85 
can  not  be  rendered  valid  by  consent  of  parties,  sec.  19,  pp.  84,  85 
judgment  rendered  during,  may  be  entered  in  vacation,  sec.  19,  p.  86 
prothonotary  of  court  may  sometimes  sign  and  so  enter  judgments, 

sec.  19,  p.  86 
rule  as  to  entry  where  judgments  are  required  to  be  read  and  signed 

in  open  court,  sec.  19,  p.  86 
court  must  be  convened  at  time  provided  by  law  to  constitute  legal, 

sec.  19,  p.  87 
court  may  usually  be  adjourned  from  day  to  day  until  appearance  of 

judge,  sec.  19,  p.  87 
if  court  is  not  opened,   business  goes  over  to  next  term,  or  to  a 

special,  sec.  19,  p.  87 
after  court  opens  in  term,  presence  of  judge  necessary  to  transaction 

of  legal  business,  sec.  19,  p.  87 
where  certain  number  of  judges  required,  presence  of  any  one  can 

not  be  dispensed  with,  sec.  19,  p.  87 
but  where  one  is    temporarily  made  a  witness,  jurisdiction  not  af- 
fected, sec.  19,  p.  87 
jurisdiction  of  court  suspended  between,  sec.  24,  p.  154 
Territorial  Jurisdiction.    (See  Change  of  Venue;  Venue.) 

state  can  not  exercise  jurisdiction  beyond  its  limits,  sec.  15,  p.  51 
same  rule  applicable   to  smaller  divisions  of  government,  sec.  15, 

p.  52 
but  may  prescribe  notice  to  be  given  to  its  own  citizens,  sec.  15,  p.  52 
can  not  authorize  extension  of  process  of  its  courts  into  other  states, 

sec.  15,  p.  53 
may,  with  consent  of  other  state,  sec.  15,  p.  53 
specific  performance  courts  of  state  where  defendant  resides  has 

jurisdiction,  sec.  15,  p.  53 
and  held  may  enforce  conveyance  of  property  in  another  state,  sec. 

15,  p.  53 
but  this  doubtful,  sec.  15,  p.  53 

over  land  in  two  counties  in  both  or  either,  sec.  15,  p.  54 
same  where  mortgage  covers  lands  partly  in  each  of  two  states,  sec. 

15,  p.  55 
corporation  a  citizen  of  state  of  its  creation,  sec.  15,  p.  56 
held  also  to  be  a  citizen  of  state  where  does  business,  sec.  15,  p.  56 
created  by  laws  of  several  states  citizen  of  either,  sec.  15,  p.  57 


INDEX.  905 

Territorial  Jurisdiction—  Continued. 

corporation  owns  property  in  different  states,  court  can  not  obtain 

jurisdiction  over  all  by  appointment  of  receiver,  sec.  15,  p.  57 
court  can  not  appoint  receiver  in  another  state,  sec.  15,  p.  58 
on  gi'ound  that  special  property  vests  in  him,  sec.  15,  p,  58 
where  constructive  service  may  be  made  on  persons  not  within,  sec. 

32,  pp.  203,  204 
not  for  recovery  of  personal  judgment,  sec.  32,  p.  204 
courts  can  not  order  service  of  process  beyond,  sec.  38,  p.  271 
effect  of  commencing  action  in  wrong  place,  sec.  45,  pp.  326-334 
effect  of  statutes  requiring  party  to  apply  for  change  to  proper  place, " 

sec.  45,  pp.  326,  327 
how  jurisdiction  may  be  attacked,  sec.  45,  p.  327 
difference  between  local  and  transitory  actions  as  to  effect,  sec.  45, 

pp.  327,  328 
in  garnishment,  sec.  75,  p.  551 
in  proceedings  for  writ  of  habeas  corpus,  sec.  82,  p.  658 

Trusts- 
courts  of  equity  have  jurisdiction  of,  sec.  9,  p.  24 
when  constructive  service  allowed  in  actions  to  enforce,  sec.  38,  p.  270 

IT 

Umpire — 

how  may  be  appointed  in  arbitration  proceedings,  sec.  76,  p.  576 
powers  of,  sec.  77,  p.  579 

United  States- 
limitation  as  to  jurisdictional  amount  does  not  affect  in  circuit  court, 

sec.  16,  p.  64 

United  States  Courts.    (See  Federal  Courts.) 

V 

Vacation.     (See  Terms  of  Court.) 

defined,  sec.  19,  p.  82 

where  term  ack|ourned  to  subsequent  day  intervening  time  is,  sec. 
19,  p.  82 

in  some  states  valid  judgment  may  be  rendered  in  and  entered  as  of 
preceding  or  ensuing  term,  sec.  19,  pp.  84,  85 

weight  of  authority  contra,  sec.  19,  p.  84 

proceedings  taken  in,  can  not  be  rendered  valid  by  consent  of  par- 
ties, sec.  19,  p.  85 

judgment  rendered  in  term  may  be  entered  in,  sec.  19,  p.  86 

authority  of  judges  in,  sec.  59,  pp.  376-379 

Vacation  of  Juagments,     (See  Judgments;  New  Trials  and  Vacation 

OF    JUDG.MENTS.  ) 

Vendor's  Liens — 

enlbrcement  of  within  jurisdiction  of  courts  of  equity,  sec.  9,  p.  24 
Venue.     (See  Changk  oi  \enue;  Territorial  .Turi.sdiction.) 

federal  courts ;  diversity  of  citizenship,  action  where  brought,  sec. 

15,  p.  56 
above  rule  when  United  States  is  plaintiff,  sec.  15,  p.  56 
objection  action  brought  in  wrong  county  waived  by  general  appear- 
ance sec.  22,  p.  115 
place  of  trial,  how  and  when  changed,  sec.  22,  p    115 
application  not  made  in  time,  question  of  jurisdiction  wnived,  sec.  22, 
p.  116 


906  INDEX. 

Venue — Continued. 

effect  of  commencing  action  in  wrong  place,  sec.  45,  p.  326 
when  application  for  change  necessary,  sec.  46,  pp.  329-332 
objection  to  bringing  in  wrong  place,  how  waived,  sec.  46,  p.  332 

Verdict — 

effect  of,  in  determining  jurisdiction  as  to  amount,  sec.  16,  p.  60 
interest  on,  how  affects  appellate  jurisdiction,  sec.  16,  p.  65 
may  be  received  on  Sunday,  sec.  19,  p.  82 

w 

Waiver.     (See  Appearance.) 

of  seivice  of  process  by  appearance,  sec.   13,  p.  37;  sec.  22,  pp.  103, 
115 
appearance  does  not  waive  objection  to  illegal  service,  sec.  22,  p.  104 
nor  does  appearance  after  default  and  a  motion  to  set  the  same 
aside,  nor  an  appearance  to  contest  the  amount  of  damages 
after  default,  sec.  22,  p.  105 
when  objection  to  jurisdiction  waived  by  demurrer  or  answer,  sec. 
22.  pp.  108,  110 
by  failure  to  plead  in  abatement,  sec.  22,  p.  109 
by  failure  to  demur,  sec.  22,  p.  110 
appeal,  when  waives  objection  to  jurisdiction,  sec.  22,  pp.  110,  111 
action  brought  in  wrong  county,  how  objection  waived,  sec.  22,  p. 
115 
want  of  jurisdiction  of  subject-matter  can  not  be  waived,  sec.  22,  p. 
118 
of  objection  to  jurisdiction  by  pleading  to  the  merits,  sec.  34,  p. 

227 
subsequent  withdrawal  of  ple.ading  does  not  affect,  sec.  34,  p.  227 
objection  that  party  not  within  territorial  jurisdiction  waived  by 
pleading,  sec.  34,  p.  227 
otherwise  as  to  subject-matter,  sec.  34,  p.  228 
so  objection  that  cause  has  not  been  properly  transferred  to  court 

waived  by  appearance,  sec.  34,  p.  228 
special  appearance  not  a  waiver,  sec.  34,  p.  228 
but  plea  to  jurisdiction  and  to  the  merits  at  same  time  full  ap- 
pearance and  waiver,  sec.  34,  pp.  228,  229 
what  amounts  to  waiver  by  appeai'ance,  sec.  34,  pp.  227-233 
withdrawal  of  appearance  does  not  affect  same  as  waiver,  sec.  34, 

p.  233 
but  cases  to  the  contrary,  sec.  34,  p.  233 
effect  of  appearance  in  main  action   over  auxiliary  proceedings, 

sec.  34,  pp.  233,  234 
of  process,  what  will  amount  to,  sec.  41,  pp.  300-305 
of  bringing  action  in  wrong  place,  sec.  46,  pp.  326-334 
as  to  venue,  sec.  49,  pp.  344-347.     (See  Change  of  Venue.) 
disqualification  of  judge,  when  and  how  may  be  waived,  sec.  62, 

pp.  401-404,  406,  408 
of  defects  in  attachment  proceedings,  sec.  74,  pp.  542-544 
of  notice  in  garnishment,  sec.  75,  p.  550 
Wills.     (See  Courts;   Jurisdiction;  Probate  Jurisdiction.) 
jurisdiction  and  contest  of,  formerly  exercised  by  courts  of  equity, 

sec.  9,  p.  24 
construction  of,   and  enforcement  of  trusts  under,  part  of  equity 

jurisdiction,  sec.  9,  p.  24 
jurisdiction  of  courts  of  equity  to  construe,  sec.  67,  p.  446 


INDEX.  907 

Wills — Continued. 

what  must  be  alleged  in  complaint  to  give  jurisdiction  of  contest, 

sec.  67,  pp.  455,  456 
probate  of,  how  far  conclusive,  sec.  67,  p.  457 
probate  of,  in  one  state,  effect  in  another,  sec.  67,  p.  457 
power  to  revoke,  sec.  67,  p.  455 
jurisdiction  over,  generally,  sec.  67,  pp.  431-460 

Witnesses- 
examination  of  de  bene  esse  a  part  of  assistant  jurisdiction  of  courts 
of  equity,  sec.  9,  p.  25 
also  perpetuation  of  testimony  of,  sec.  9,  p.  25 
while  in  attendance  at  court,  privileged  from  service  of  process,  sec." 
37,  pp.  258-260 

Writs.     (See   Attachment;    Certioraui;    Injunction;    Mandamus;    Ne 
Exeat;  Summons;    Writs  of  Error) 

Writs  of  Error. 

existed  at  common  law,  sec.  21,  p.  98 

have  been  modified  in  some  states  and  abolished  in  others  by  statute, 

sec.  21,  p.  98 
effect  of  on  jurisdiction  of  court,  sec.  24,  p.  150 
effect  of  on  judgment,  sec.  24,  p.  150 
are  of  two  kinds,  sec.  85,  p.  692 
coram  nobis  nature  and  objects  of,  sec.  85,  p.  692 
and  of  coram  vobis,  sec.  85,  pp.  692,  693 
former  almost  out  of  use,  sec.  85,  p.  693 
writ  of  error  as  now  used  defined,  sec.  85,  p.  693 
is  a  common  law  remedy  for  correction  of  errors,  sec.  85,  p.  694 
regulated,  at  present  day,  by  statute,  sec.  85,  p.  694 
not  applicable  to  special  statutory  proceedings,  sec.  85,  p.  694 
record  on  can  not  be  contradicted,  sec.  85,  p.  694 
record,  what  must  contain,  sec.  85,  p.  694 
as  existed  at  common  law  could  not  review  order  after  judgment, 

sec.  85,  p.  694 
in  what  cases  proper  remedy  in  federal  courts,  sec.  85,  p.  694 
proper  in  criminal  case,  sec.  85,  p.  694 
confined  to  common  law  actions,  sec.  85,  p.  695 
but  subject  to  statutory  control,  sec.  85,  p.  695 

can  not  be  used  to  control  discretion  of  lower  court,  sec.  85,  p.  695 
will  issue  only  after  final  judgment,  sec.  85,  p.  695 
generally  treated  as  writ  of  right,  sec.  85.  p.  695 
coram  nobis  not  writ  of  right,  sec.  85,  p.  695 
litigants  have  no  vested  right  to  and  may  be  taken  away  by  statute, 

sec.  85,  p.  695 
only  allowed  to  party  or  privy,  sec.  85,  p.  696 
sometimes  confined  to  parties  of  record,  sec.  85,  p.  696 
60  far  original  proceeding  as  to  require  notice  and  making  of  issues, 

sec.  85,  p.  696 
is  put  in  motion  by  petition,  sec.  85,  p.  696 
and  summons  or  citation  issues,  sec.  85,  p.  696 
pleading  is  assignment  of  errors,  sec.  85,  p.  696 
only  errors  assigned  can  be  considered,  sec.  85,  p.  696 
decision  of  court  below  necessary  foundation  of  jurisdiction,  sec.  85, 

p.  696 
must  appear  bv  record  to  have  been  presented  and  decided,  sec.  85, 

pp.  696,  697 
errors  of  fact  can  not  be  corrected  by,  sec.  85,  p.  697 
writ  has  been  abolished  in  some  states,  sec.  85,  p.  697 


908 


INDEX. 


Writs  of  Error — Continued. 

legislature  may  regulate,  sec.  85,  p.  697 

appeal  supersedes,  when,  sec.  85,  p.  697 

suspends  proceedings  in  court  below,  sec.  85,  p.  698 

but  does  not  vacate  judgment,  sec.  85,  p.  698 

jurisdiction  of  can  not  be  conferred  by  statute,  sec.  85,  p. 

Writs  of  Review.     (See  Bills  and  Writs  of  Review.) 


698 


JL 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  847  843    0 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


Ifcas  im 


Form  T>0-Sorios4939 


%.MMMJ 


